Kerala High Court
Vimala Bai vs Ani on 4 July, 2025
2025:KER:48550
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RSA NO. 974 OF 2011
AGAINST THE COMMON JUDGMENT DATED 03.06.2011 IN AS
NO.135 OF 2007 OF SUB COURT, NEYYATTINKARA ARISING OUT OF
THE COMMON JUDGMENT DATED 13.10.2006 IN OS NO.441 OF 2004
OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SIVANANDAN (*DIED)
AGED 64 YEARS
S/O. AYYAPPAN, LAKSHMI BHAVAN,
MARUTHOOR DESOM,
PERUMPAZHUTHOOR VILLAGE,
NEYYATTINKARA.
(LHRS IMPLEADED AS ADDITIONAL A3 TO A5)
2 VIMALA BAI, AGED 55 YEARS
D/O. REMA BAI, MARUTHOOR DESOM,
PERUMPAZHUTHOOR VILLAGE,
NEYYATTINKARA.
*ADDL. SUSHACIVI
A3 AGED 39 YEARS
D/O. VIMALA BAI,
RESIDING AT ANI BHAVAN, POOZHIKUNNU,
CHENKAL VILLAGE,
CHENKAL P.O. NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 121.
*ADDL. REMYA V.S.
A4 AGED 37 YEARS
D/O. VIMALA BAI, RESIDING AT ANI BHAVAN,
POOZHIKUNNU, CHENKAL VILLAGE,
CHENKAL P.O.
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 121.
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RSA Nos.974, 975 & 1241 OF 2011
2
*ADDL. PRAVEEN SIVAN
A5 AGED 35 YEARS
S/O. VIMALA BAI, RESIDING AT ANI BHAVAN,
POOZHIKUNNU, CHENKAL VILLAGE, CHENKAL P.O.
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 121.
*LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 5 AS
PER THE ORDER DATED 08.12.2017 IN I.A.
2523/2017.
BY ADVS.
A2 - SRI. K.RAJESH KANNAN
- SRI. A.S.SHAMMY RAJ
- SRI. P.SHANES METHAR
A2 TO A5 - SRI. G.S REGHUNATH
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ANI, AGED 36 YEARS
S/O. SADASIVAN
RESIDING AT ANI BHAVAN, POOZHIKUNNU,
CHENKAL VILLAGE, CHENKAL P.O.,
NEYYATTINKARA, TRIVNADRUM - 695 132.
2 GIRIJA, AGED 48 YEARS
D/O.REMA BAI
RESIDING AT ANI BHAVAN, POOZHIKUNNU,
CHENKAL VILLAGE, CHENKAL P.O.,
NEYYATTINKARA, TRIVANDRUM - 695 132.
BY ADV SRI.B.KRISHNA MANI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
HEARING ON 19.06.2025, ALONG WITH RSA.975/2011 AND
CONNECTED CASES, THE COURT ON 04.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:48550
RSA Nos.974, 975 & 1241 OF 2011
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RSA NO. 975 OF 2011
AGAINST THE COMMON JUDGMENT DATED 03.06.2011 IN AS
NO.136 OF 2007 OF SUB COURT, NEYYATTINKARA ARISING OUT OF
THE COMMON JUDGMENT DATED 13.10.2006 IN OS NO.441 OF 2004
OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SIVANANDAN (*DIED)
AGED 64 YEARS
S/O. AYYAPPAN,
LAKSHMI BHAVAN,
MARUTHOOR DESOM,
PERUMPAZHUTHOOR VILLAGE,
NEYYATTINKARA.
(LHRS IMPLEADED AS ADDITIONAL A3 TO A5)
2 VIMALA BAI,
AGED 55 YEARS
D/O. REMA BAI,
MARUTHOOR DESOM,
PERUMPAZHUTHOOR VILLAGE,
NEYYATTINKARA.
*ADDL. SUSHACIVI
A3 AGED 39 YEARS
D/O. VIMALA BAI,
RESIDING AT ANI BHAVAN,
POOZHIKUNNU,
CHENKAL VILLAGE,
CHENKAL P.O.
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 121.
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RSA Nos.974, 975 & 1241 OF 2011
4
*ADDL. REMYA V.S.
A4 AGED 37 YEARS
D/O. VIMALA BAI, RESIDING AT ANI BHAVAN,
POOZHIKUNNU, CHENKAL VILLAGE,
CHENKAL P.O. NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 121.
*ADDL. PRAVEEN SIVAN
A5 AGED 35 YEARS
S/O. VIMALA BAI, RESIDING AT ANI BHAVAN,
POOZHIKUNNU, CHENKAL VILLAGE, CHENKAL P.O.
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM - 695 121.
*LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 5 AS
PER THE ORDER DATED 08.12.2017 IN I.A.
2110/2017.
BY ADVS.
A2 TO A5 - SRI.G.S.REGHUNATH
A2 - SRI.K.RAJESH KANNAN
- SRI.A.S.SHAMMY RAJ
- SRI.P.SHANES METHAR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ANI, AGED 36 YEARS
S/O. SADASIVAN
RESIDING AT ANI BHAVAN, POOZHIKUNNU,
CHENKAL VILLAGE, CHENKAL P.O.,
NEYYATTINKARA, TRIVNADRUM - 695 132.
2 GIRIJA, AGED 48 YEARS
D/O.REMA BAI
RESIDING AT ANI BHAVAN, POOZHIKUNNU,
CHENKAL VILLAGE, CHENKAL P.O.,
NEYYATTINKARA, TRIVANDRUM - 695 132.
BY ADV SRI.B.KRISHNA MANI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
HEARING ON 19.06.2025, ALONG WITH RSA.974/2011,
1241/2011, THE COURT ON 04.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:48550
RSA Nos.974, 975 & 1241 OF 2011
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RSA NO. 1241 OF 2011
AGAINST THE COMMON JUDGMENT DATED 03.06.2011 IN AS
NO.134 OF 2007 OF SUB COURT, NEYYATTINKARA ARISING OUT OF
THE COMMON JUDGMENT DATED 13.10.2006 IN OS NO.216 OF 2004
OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA
APPELLANT/APPELLANT/DEFENDANT:
VIMALA BAI
AGED 54 YEARS, D/O.REMA BAI,
RESIDING AT LEKHMI BHAVAN, MARUTHOOR DESOM,
PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA.
BY ADVS.
SRI.G.S.REGHUNATH
SRI.K.RAJESH KANNAN
SRI.A.S.SHAMMY RAJ
SRI.P.SHANES METHAR
RESPONDENT/RESPONDENT/PLAINTIFF:
ANI, AGED 36 YEARS, S/O. SADASIVAN,
RESIDING AT ANI BHAVAN, POOZHIKUNNU,
CHENKAL VILLAGE, CHENKAL P.O,
NEYYATTINKARA TALUK,
TRIVANDRUM - 695 132.
SRI. B.KRISHNA MANI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
HEARING ON 19.06.2025, ALONG WITH RSA.975/2011 AND
CONNECTED CASES, THE COURT ON 04.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:48550
RSA Nos.974, 975 & 1241 OF 2011
6
"C.R."
EASWARAN S., J
--------------------------------------------
R.S.A Nos.974, 975 & 1241 of 2011
----------------------------------------------
Dated this the 4th day of July, 2025
JUDGMENT
These appeals arise out of the common judgment
and decree passed by the II Addl. Munsiff's Court,
Neyyattinkara, in OS Nos.216/2004 and 441/2004 dated
13.10.2006 and also a counterclaim for partition. OS
No.216/2004 is a suit for injunction, whereas OS
No.441/2004 is a suit for redemption of mortgage and
partition.
2. The brief facts necessary for the disposal of the
appeals are as follows:-
OS No.441 of 2004 is instituted by Vimala Bai and
Ayyappan Sivanandan seeking for redemption of
mortgage. OS No.216 of 2004 is instituted by one Ani,
the sibling of Vimala Bai, seeking for a decree of
injunction restraining his sister from trespassing into the
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RSA Nos.974, 975 & 1241 OF 2011
plaint schedule property. For consideration of the issues
raised in these appeals, it will suffice the cause if the
facts leading to the filing of OS No.441 of 2004 are stated.
The plaint A schedule property belonged to the 2 nd
plaintiff's father, late Sadasivan, as per document No.425
of 1961. Late Sadasivan mortgaged the property in favour
of one Krishna Pilla Raghavan Pillai by a registered
mortgage deed No.2918/69 dated 17.09.1969. It is
contended that although the property was under
mortgage, Raghavan Pillai did not get possession and
Sadasivan continued possession of the property. Later,
when the 2nd plaintiff in OS No.441 of 2004 was married
off, her father Sadasivan executed a gift deed bearing
No.1169/76 dated 07.04.1976 wherein 10 cents of land
described as B schedule out of the 25 cents comprising in
plaint A schedule property was gifted to her. After the said
transfer, Sadasivan had kept the balance 15 cents in his
possession described as plaint C schedule. While so, the
mortgage in the year 1969 was redeemed for and on
behalf of the 1st defendant by Sadasivan by executing a
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RSA Nos.974, 975 & 1241 OF 2011
registered deed No.2056 dated 30.07.1986. Going by the
said deed, the 1st defendant was entitled to hold the
property under mortgage and was obliged to get the
release deed executed from the erstwhile mortgagors as
and when the mortgage is redeemed by them. According
to the plaintiffs, the execution of the deed on 30.07.1986
is a valid acknowledgment of the mortgage by Raghavan
Pillai in favour of Sadasivan, and therefore, it constitutes
a valid acknowledgment of the mortgage and therefore
the suit for redemption of mortgage is maintainable.
Thus, it is prayed that the plaintiffs be permitted to
redeem the mortgage and the plaint C schedule be
partitioned giving 1/3rd share to the plaintiffs. The
defendants in OS No.441 of 2004 entered appearance and
contested the suit, by denying the execution of the gift
deed stating that it is a void document. It was further
contended that the suit for redemption of mortgage was
time barred. Along with the suit, a counter claim was
raised by the defendants seeking for a partition of the
property covered by the gift deed and included as counter
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RSA Nos.974, 975 & 1241 OF 2011
claim schedule property. The aforesaid suit was tried
along with OS No.216 of 2004 wherein, the 1 st defendant
had sought for a decree of injunction restraining the
defendants/plaintiffs in OS No.441 of 2004 from
interfering with the peaceful possession of the plaintiff
over the property. Both the suits were tried together.
Exts.A1 to A9 were marked on behalf of the plaintiffs in
OS No.441 of 2004. Exts.B1 to B5 were marked on behalf
of the defendants. PW1 to PW3 were examined on behalf
of the plaintiffs. DW1 and DW2 were examined on behalf
of the defendants. On the basis of the pleadings and
documentary evidence, the trial court framed separate
issues in OS Nos.216 of 2004 and 441 of 2004. The
issues framed in OS No.216 of 2004 are as follows:-
"1. Whether plaintiff has got possession over
plaint schedule property?
2. Whether plaintiff is entitled for a decree of
injunction as prayed for?
3. Reliefs and costs?"
The issues framed in OS No.441 of 2004 are as follows:-
"1. Whether plaintiff is entitled for a decree for
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RSA Nos.974, 975 & 1241 OF 2011
redemption of mortgage as prayed for?
2. Whether the plaintiff is entitled for a
recovery of possession of B C schedule property?
3. Whether plaintiff is entitled for a partition of
plaint C schedule as prayed for?
4. If so what is the share to be allotted to
plaintiff?
5. Whether the defendants are entitled for a
decree of partition over property scheduled in the
written statement?
6. Reliefs and costs?"
3. On appreciation of the oral and documentary
evidence, the trial court found that, Ext.A3 gift deed is
void inasmuch as the mandatory requirement of Section
123 of the Transfer of Property Act, 1882 (for short, 'the
Act, 1882') was not met. As regards the prayer for
redemption of mortgage, the trial court held that the suit
is barred by limitation and Ext.A4 does not constitute a
valid acknowledgment. Accordingly, OS No.216 of 2004
was decreed and the defendants were restrained by an
order of injunction from trespassing into the plaint
schedule property therein and OS No.441 of 2004 was
dismissed and the counter-claim was allowed and the
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counter-claim schedule property was ordered to be
partitioned and the defendants/counter-claim petitioners
were allotted 2/3 share over the scheduled properties.
Aggrieved by the judgment and decree, the plaintiffs in
OS No.441 of 2004 preferred AS Nos.135 of 2007, 136 of
2007 and 134 of 2007 before the Sub Court,
Neyyattinkara. By a common judgment dated 03.06.2011,
these appeals were dismissed, and thus the appellants
are before this Court.
4. While the appeal was admitted to file on
13.01.2012, separate questions of law were framed in
R.S.A Nos.974, 975 and 1241 of 2011 respectively, which
are as follows:-
"1) When it is proved by PW2 that he was a
witness to execution of Ext.A3 by the executant
Sri.Sadasivan is the court justified in holding that
the signature in Ext.A3 is not attested by two
witnesses.
2) Has not the lower court mislead and
misinterpreted Ext.A4 in not considering the
effect of the recital:
"ജന്മി നേർപ്പെട്ട ആധാരം വാങ്ങി കൊള്ളതാകുന്നു"
3) Is not the finding of lower court that Ext.A2
is barred by limitation, illegal and wrong?"
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RSA Nos.974, 975 & 1241 OF 2011
4. Is not the lower court bound to hold that the
counter claim raised in the suit is not
maintainable as it is not regarding plaint
schedule property and not in respect of a cause
of action accruing to the defendant against the
plaintiff either before or after the filing of the suit
as the suit and the cause of action are regarding
an entirely different property?"
5. If the predecessor of the plaintiff asserted that
he is in possession of the plaint schedule
property and excluded a registered document
transferring possession of a portion of plaint
schedule property as per Ext.A3 to defendant and
her husband, can the plaintiff claim possession of
the entire plaint schedule property and get a
decree of injunction as prayed for?"
5. Heard Sri.G.S.Raghunath, the learned counsel
appearing for the appellants and Sri.B.Krishna Mani, the
learned counsel appearing for respondents 1 and 2.
6. Sri.G.S.Raghunath, the learned counsel
appearing for the appellants raised the following
submissions:
(a) The suit for redemption of mortgage is not barred.
Both the courts failed to notice that Ext.A2 is a mortgage
in favour of Raghavan Pillai and that it is a usufructuary
mortgage. The period of limitation prescribed for filing a
suit for redemption of mortgage is provided in Article 61
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RSA Nos.974, 975 & 1241 OF 2011
of the Limitation Act, 1963 (for short, 'the Act, 1963).
(b) The defendants had no cause of action for preferring
a counterclaim, inasmuch as the counter-claim was
sought for in respect of a property which was not subject
matter of OS No.441 of 2004. The cause of action for
preferring the counter-claim would arise immediately on
execution of Ext.A3 gift deed in the year 1976.
(c) The trial court as well as the first appellate court
erred egregiously in holding that Ext.A3 gift deed is void
under Section 123 of the Transfer of Property Act, 1882.
The evidence of PW2 was sufficient to hold that the
signature affixed by the Sub Registrar had the necessary
animus for the purpose of complying with the mandate of
Section 123 of the Act, 1882.
(d) Going by the proviso to Section 68 of the Indian
Evidence Act, 1872 (for short, 'the Act, 1872'), the
defendants could not have disputed the execution of the
gift deed because it is a registered document. The
requirement to examine an attesting witness would arise
only if the execution is denied by the executant.
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RSA Nos.974, 975 & 1241 OF 2011
7. Per contra, Sri.B.Krishna Mani, the learned
counsel appearing for the respondents, would counter the
submissions of Sri.G.S.Regunath, the learned counsel for
the appellants, by raising the following submissions.
(a) The suit for redemption of mortgage ought to have
been filed within a period of 30 years when the right to
redeem or to recover possession accrues. In the present
case, the mortgage was created in the year 1969 and
therefore, the suit ought to have been filed within 30
years from the date of execution of the mortgage deed.
(b) Execution of Ext.A4 mortgage in favour of the 1 st
defendant by itself will not constitute a valid
acknowledgment since there is no admission of the
mortgage in the aforesaid deed. In order to constitute a
valid acknowledgment under Section 19, the learned
counsel would submit that there should be sufficient
ingredients and that Ext.A3 does not contain these
ingredients. In support of his contentions, relied on the
decisions of this Court in Padmanabhan Narayanan v.
Padmanabha Pillai Gopalapillai [1968 KLT 451] and
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RSA Nos.974, 975 & 1241 OF 2011
Savithri Kunjamma v. Narayanan [1989 (2) KLT 628].
(c) Both the trial court and the first appellate court
concurrently found that Ext.A3 gift deed does not fulfill
the mandate of Section 123 of the Act, 1882 and
therefore, the counter-claim for partition was perfectly
maintainable, and thus the decree cannot be interfered
with.
8. I have considered the rival submissions raised
across the Bar and have perused the records and the
judgments rendered by the courts below.
Whether the suit for redemption of the mortgage is
barred.
9. A perusal of Ext.A2 shows that late Sadasivan
had executed an usufructuary mortgage in favour of
Raghavan Pillai. The conditions required for executing a
usufructuary mortgage are contained under Section 58(d)
of the Act, 1882. Section 58(d) of the Act, 1882 reads as
under:-
58. "Mortgage", "mortgagor", "mortgagee",
"mortgage-money" and "mortgage-deed"
defined.-- (a) xxxxx
(b) xxxxx
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RSA Nos.974, 975 & 1241 OF 2011
(c) xxxxx
(d) Usufructuary mortgage.--Where the
mortgagor delivers possession [or expressly or by
implication binds himself to deliver possession] of
the mortgaged property to the mortgagee, and
authorises him to retain such possession until
payment of the mortgage-money, and to receive
the rents and profits accruing from the property
[or any part of such rents and profits and to
appropriate the same] in lieu of interest, or in
payment of the mortgage -money, or partly in lieu
of interest [or] partly in payment of the mortgage-
money, the transaction is called an usufructuary
mortgage and the mortgagee an usufructuary
mortgagee."
10. The terms of the mortgage as discernible from
Ext.A2 show that the mortgage money will become due
when demanded. During the subsistence of the
mortgage, the mortgagee, namely Raghavan Pillai,
executed a mortgage assignment deed No.2056 of 1986
dated 30.07.1986. Pertinently, the 1st defendant at the
time of execution of Ext.A4 was a minor. Therefore, a
presumption is to be drawn that the mortgage was
redeemed for and on behalf of the minor by his natural
guardian, who is the father. No evidence adduced by the
parties to show that the minor had independent capacity
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RSA Nos.974, 975 & 1241 OF 2011
to redeem the mortgage. Though the evidence of DW2,
the 2nd defendant, points out that the 1 st defendant was
earning sufficient money at the time of the assignment by
cultivation, the oral testimony of DW2 alone is not
sufficient to conclude that the 1 st defendant possessed
sufficient means to redeem the mortgage.
11. It must be noticed that, in terms of Ext.A4
mortgage assignment deed, what is conferred on the 1 st
defendant is the right of the mortgagor. Therefore, prima
facie it is difficult to hold that the right of redemption is
lost because of Ext.A4. Moreover, the assignment deed
specifically mentions that, the 1st defendant is bound to
get documents executed by the Jenmi. Therefore, what is
assigned in favour of the 1st defendant was nothing but an
equity of redemption.
12. The courts below found that the suit was barred
since the period of 30 years had expired by the time the
suit was instituted. In arriving at the said conclusion,
reliance was placed on the decision of the Hon'ble
Supreme Court in Prabhakaran and Others v.
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RSA Nos.974, 975 & 1241 OF 2011
M.Azhagiri Pillai (Dead) By LRs And Others [2006
(4) SCC 484].
13. The view expressed by the trial court as well as
the first appellate court falls short of the mandate of
Article 61 of the Act, 1963, especially since both the
courts below failed to notice the fact that the limitation
period starts only from the date on which the right to
redeem or recover possession accrues.
14. Let us see, whether the trial court was correct
in applying the ratio decidendi laid down in
Prabhakaran and Others (supra). In the aforesaid
decision, the Hon'ble Supreme Court held that a mere
reference or description of a jural relationship in a
subsequent document is not sufficient to constitute a
valid acknowledgment under Section 18 of the Act, 1963.
But it must be noted that in paragraph 24, the Supreme
Court held as follows:-
"24. We may illustrate as to what is mere
reference or description of the jural relationship
and what constitutes an intention to admit the
jural relationship. If the relevant portion of the
deed of assignment, sought to be relied on as an
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acknowledgment merely stated that "X
mortgaged the schedule property in my favour
under the deed of usufructuary mortgage dated
(date) and I hereby assign the said mortgage in
your favour", it will not be an "acknowledgment"
under Section 18 of the Act. This is because it
refers only to the jural relationship, but does not
show an intention to admit the jural relationship
with the mortgagor or admit his subsisting
liability as mortgagee of being redeemed. But the
position will be different, if the assignment deed
further stated: "The said mortgage is subsisting"
or "The rights and obligations under the said
mortgage are enforceable", or "The assignee is
entitled to all benefits under the said mortgage",
or "The assignee is entitled to receive the
amount advanced under the said mortgage", or
"The assignee is entitled to all rights and liable
for all obligations under the said mortgage", or
"The assignee is entitled to continue in
possession until the mortgage is redeemed". The
use of any such words (which are illustrative and
not exhaustive) would show an intention to admit
the jural relationship, and therefore, amount to
acknowledgment, though they may not refer to
the mortgagor's right of redemption. Ultimately,
it is not the form of the words, but the intention
to admit the jural relationship with the
mortgagor, that will determine whether a
statement is an acknowledgment."
If Ext.A4 is tested in the light of the principles discernible
from the reading of paragraph 24 of the decision, it is
evident that, there is a clear acknowledgment of the
mortgage.
15. In Singh Ram (D) Thr. L.Rs. v. Sheo Ram
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RSA Nos.974, 975 & 1241 OF 2011
and Others [2014 (9) SCC 185], a three Judge Bench of
the Hon'ble Supreme Court held that the views expressed
in Prabhakaran and Others (supra) may not be correct
proposition of law. It was held that the right of
redemption of a mortgagor being a statutory right can be
taken away only in terms of the proviso appended to
Section 60 of the Act, 1882 it is either extinguished by a
decree or by act of the parties. Paragraph 22 of the
decision reads as under:-
"22. We, thus, hold that special right of
usufructuary mortgagor under S.62 of the TP Act
to recover possession commences in the manner
specified therein, i.e., when mortgage money is
paid out of rents and profits or partly out of rents
and profits and partly by payment or deposit by
mortgagor. Until then, limitation does not start
for purposes of Art.61 of the Schedule to the
Limitation Act. A usufructuary mortgagee is not
entitled to file a suit for declaration that he had
become an owner merely on the expiry of 30
years from the date of the mortgage. We answer
the question accordingly."
16. In Rashbehary Ghose, Law of Mortgage
seventh Edition, (Tagore Law Lecture) it is opined by
the learned Author, a possessory mortgage, in which a
mortgagee is to obtain possession of the property in lieu
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if a fixed sum with a superadded condition that the
redemption will take place as soon as the mortgage
money is paid, is a usufructuary mortgage. In an
usufructuary mortgage, a period of redemption need not
be fixed.
17. In Fisher and Lightwood's Law of Mortgage,
Nineth Edition, it is stated that" Where no date for
redemption is specified and the debt is repayable on
demand by the mortgagee, the mortgagor may, it seems,
redeem at any time. And thus, is apparently so even
where the mortgagee has covenanted not to call the
mortgage until a specified date.
18. No doubt, the period of limitation for redemption
of mortgage is governed by Article 61 of the Limitation
Act 1963. However, the said provision must be read along
with Section 60 of the Transfer of Property Act, 1882. The
right of redemption is a statutory right and can be
extinguished only by the stipulations contained under the
proviso to Section 60. Proviso to Section 60 says that the
right conferred under the section can be extinguished by
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the act of the parties or decree of a court. It must be
remembered that when the right of redemption is
curtailed on the ground that the suit is not filed within 30
years from the date of mortgage, then the same will be in
conflict with proviso to Section 60 of the Act of 1882.
19. Admittedly, the 1st defendant did not file a suit for
foreclosure of mortgage based of Ext.A4. Therefore, until
and unless the mortgagor tender's money in usufructuary
mortgage and sues for recovery of possession, it cannot
be said that the suit is barred by limitation.
20. Coming back to Ext.A4, it could be seen that it is
nothing but a subrogation of rights under Section 92 of
the Transfer of Property Act, 1882. It will be difficult to
hold that merely because the mortgage was assigned, the
right of redemption is lost. This is more so because, in a
case of subrogation, the rights of the mortgagee alone is
transferred to the assignee and in turn he will have the
same rights that of the assignor which he had against the
mortgagor.
21. The rights of a assignee of a mortgage came up
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for consideration before the Full Bench of this Court in
Lakshmi Pilla Subhadra Amma v. Easwara Pillai
Velayudhan Pillai [1977 KLT 464]. It was held that
Section 92 of the Act, 1882 does not provide that the
redeeming co-mortgagor shall be deemed to be a
mortgagee or shall be substituted to the full rights of the
mortgagor for all purposes.
22. It is beyond doubt that the 1st defendant was a
person interested in the property when the redemption
took place in the year 1986. That apart, the evidence
adduced in the present case is insufficient to hold that the
1st defendant had possessed sufficient funds for
redemption of the mortgage and therefore the necessary
corollary is that Sadasivan, the father of the 2 nd plaintiff
had redeemed the property but of course in the name of
the 1st defendant. It will be altogether an incorrect
proposition of law to hold that on execution of Ext.A4
mortgage assignment deed, the 1 st defendant came into
possession of the right, title and interest over the
property. Therefore, the plaintiffs were perfectly entitled
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to maintain a suit for redemption of the mortgage.
23. In the absence of any suit for foreclosure, going
by the principle, once a mortgage is always a mortgage,
the right to redeem the mortgage continues until a
decree for sale is passed in a suit for foreclosure and that
the property is put for sale upon a final decree being
passed. Therefore, the trial court as well as the first
appellate court erred egregiously in holding that the suit
for redemption of mortgage was time barred.
Whether Ext.A3 is a valid gift deed
24. The most contentious issue raised before this
court is regarding the validity of the gift deed. The
defendants in their written statement contended that
Ext.A3 is a void document. On behalf of the plaintiffs, one
of the attesting witnesses in Ext.A3 was examined, and
he deposed that late Sadasivan executed Ext.A3 and that
he had affixed the signature after late Sadasivan had
signed the gift deed. Normally, the examination of the
attesting witness would have sufficed the cause, but on a
close examination of Ext.A3, the trial court found that the
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second attesting witness has not signed Ext.A3 and
thereby the mandate of Section 123 of the Act, 1882, was
violated. Section 123 of the Act, 1882 reads as under:-
"123. Transfer how effected.--For the purpose
of making a gift of immovable property, the
transfer must be effected by a registered
instrument signed by or on behalf of the donor,
and attested by at least two witnesses.
For the purpose of making a gift of movable
property, the transfer may be effected either by
a registered instrument signed as aforesaid or by
delivery.
Such delivery may be made in the same
way as goods sold may be delivered."
A reading of the aforesaid provision shows that the
transfer by a gift must be effected through a registered
instrument signed by or on behalf of the donor and
attested by at least two witnesses. If a literal
construction of the above provision is made, then Ext.A3
falls short of the mandate.
25. However, the further question before this Court
is, can PW2, the Registrar, who witnessed the execution
of Ext.A3, be construed as an attesting witness. Though
the precedent on the point is multiple in numbers, this
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Court does not deem it appropriate to refer to all the
precedents on the point. Suffice to say, there is no b ar
under Section 123 of the Act, 1882, for a Registrar to be
an attesting witness, provided he has signed the gift deed
with the required animus. In this context, it is pertinent
to note the evidence of PW2. When PW2 was examined,
he specifically admitted that he had put his signature as a
witness with sufficient animus. The question reads as
under:-
"താങ്കൾ ഒപ്പിട്ടത് ഒരു witness എന്ന animus-ഓടു
കൂടിയാണോ? (Q) അതേ (A)"
26. However, in the cross examination, PW2 stated
as follows:-
"Ext.A3 യിൽ ഞാൻ ഒപ്പിട്ടത് ഔദ്യോഗിക
കൃത്യനിർവ്വഹണത്തിന്റെ ഭാഗമായാണ്. അതല്ലാതെ വേറെ
ഒപ്പ് Ext.A3 യിൽ ഇട്ടിട്ടുണ്ടോ? (Q) ഇല്ല (A)"
This perhaps weighed on the minds of the trial court in
holding that PW2 had not signed the document with the
required animus. This Court is afraid that, the aforesaid
finding is completely perverse. The courts below could
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not have ignored the evidence of PW2 since there is a
clear admission that the signature of PW2 in Ext.A3 was
as a witness with sufficient animus and thus constituting
a valid gift deed which complied the mandate of Section
123 of the Act, 1882. The evidence of PW2 in the cross
examination can only be construed with one meaning -
affixture of the signature of PW2 was in his official
capacity. The presence of animus having already spoken
by him, there was no necessity for him to speak again on
this issue. Therefore, it is clear that the trial court clearly
went wrong in appreciating the evidence of PW2.
27. There is yet another reason why this Court
should hold that the courts below erred in declaring that
Ext.A3 gift deed to be a void document. The proviso to
Section 68 of the Act, 1872, mandates the requirement of
examining the attesting witness, if the gift deed is denied
by the executant.
28. In Surendra Kumar v. Nathulal and Another
[2001 (5) SCC 46], the Hon'ble Supreme Court held that
the requirement under proviso to Section 68 of the Act,
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1872, arises only if the executant has denied the
execution. In the present case, the executant, late
Sadasivan, during his life time had not denied the
execution of the gift deed. Therefore, the denial of
execution of the gift deed by the defendants is of no
consequences. Further, Ext.A3 is a registered document
and therefore, it operates as a constructive notice on the
defendants. Even if it is assumed that the defendants
could have disputed the gift, except a vague and evasive
denial, no further evidence supporting the claim is seen
adduced. Therefore, the courts below could not have held
that Ext.A3 is a void document. Similarly, it has come out
in evidence that the property covered by Ext.A3 gift deed
was the subject matter of mortgage in favour of a
Cooperative Bank in the year 1986. If as contended by
the 1st defendant, the possession of the property covered
by the gift deed was not transferred to the 2 nd plaintiff,
the Bank would not have accepted the mortgage. Still
further, the right of 2nd plaintiff for equity of redemption
was reserved in Ext A3. That be so, both the courts below
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erred egregiously in finding that Ext.A3 is not a valid gift.
Whether counter-claim is maintainable
29. It is argued by the learned Counsel for the
appellants that the counter claim was not maintainable
inasmuch as it was not in respect of the cause of action
accruing to the defendants. The provisions dealing with
the counter-claim are found under Order VIII Rule 6A of
the Code of Civil Procedure (CPC), which reads as under:-
"6A. Counter-claim by defendant.--(1) A defendant in
a suit may, in addition to his right of pleading a set-
off under rule 6, set up, by way of counter-claim
against the claim of the plaintiff, any right or claim in
respect of a cause of action accruing to the
defendant against the plaintiff either before or after
the filing of the suit but before the defendant has
delivered his defense or before the time limited for
delivering his defense has expired, whether such
counter-claim is in the nature of a claim for damages
or not:
Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim shall have the same effect as
a cross-suit so as to enable the Court to pronounce a
final judgment in the same suit, both on the original
claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written
statement in answer to the counter-claim of the
defendant within such period as may be fixed by the
court.
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(4) The counter-claim shall be treated as a plaint and
governed by the rules applicable to plaints."
A reading of sub-Rule (1) of Rule 6A of the CPC shows that
a counter-claim ought to be in respect of a cause of action
accruing to the defendants against the plaintiff either
before or after filing of the suit but before the defendants
have delivered their defense. The latter part of the sub-
Rule 1 which prescribed the time limit for preferring the
counter-claim is not attracted in the present case, but the
former part wherein it provides that the counter-claim
shall be in respect of a cause of action accruing to the
defendants either before or after filing of the suit is
attracted in the present case.
30. In Jag Mohan Chawla VS Dera Radha Swami
Satsang [(1996) 4 SCC 699], the Supreme Court held
as follows:-
"5. The question, therefore is; whether in a suit
for injunction, counter-claim for injunction in
respect of the same or a different property is
maintainable? Whether counter-claim can be made
on different cause of action? It is true that
preceding CPC Amendment Act, 1976, Rule 6 of
Order 8 limited the remedy to set off or counter
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RSA Nos.974, 975 & 1241 OF 2011
claim laid in a written statement only in a money
suit. By CPC Amendment Act, 1976, Rules 6A to 6G
were brought on statute. Rule 6A(1) provides that a
defendant in a suit may, in addition to his right of
pleading a set off under rule 6, set up by way of
counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action
accruing to the defendant against the plaintiff
either before or after the filing of the suit but
before the defendant has delivered his defence or
before the time limited for delivering his defence
has expired, whether such counter-claim is in the
nature of a claim for damage or not. A limitation
put in entertaining the counter-claim is as provided
in the proviso to sub-rule (1), namely, the counter
claim shall not exceed the pecuniary limits of the
jurisdiction of the Court. Sub-rule (2) amplifies that
such counter-claim shall have the same effect as a
cross-suit so as to enable the Court to pronounce a
final judgment in the same suit, both on the
original claim and on the counter-claim. The
plaintiff shall be given liberty to file a written
statement to answer the counter-claim of the
defendant within such period as may be fixed by
the Court. The counter-claim is directed to be
treated, by operation of sub-rule (4) thereof, as a
plaint governed by the rules of the pleadings of the
plaint. Even before 1976 Act was brought on
statute, this Court in Laxmidas Dahyabhai
Kabarwala v. Nanabhai Chunilal Kabarwala, (1964)
2 SCR 567 : (AIR 1964 SC 11), had come to
consider the case of suit and cross suit by way of
counter-claim. Therein, suit was filed for
enforcement of an agreement to the effect that
partnership between the parties had been
dissolved and the partners had arrived at a specific
amount to be paid to the appellant in full
satisfaction of the share of one of the partners in
the partnership and thereby decree for settlement
of accounts was sought. Therein the legal
representatives of the deceased partner contended
in the written statement, not only denying the
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settlement of accounts but also made a counter-
claim in the written statement for the rendition of
accounts against the appellant and paid the court-
fee as plaint. They also sought a prayer to treat the
counter-claim as a cross suit. The trial Court
dismissed the suit and the counter-claim. On
appeal, the learned single Judge accepted the
counter-claim on a plaint in a cross suit and
remitted the suit for trial in accordance with law.
On appeal, per majority, this Court had accepted
the respondents' plea in the written statement to
be counter-claim for settlement of their claim and
defence in written statement as a cross suit. The
counter-claim could be treated as a cross suit and it
could be decided in the same suit without
relegating the parties to a fresh suit. It is true that
in money suits, decree must be conformable to
Order 20, Rule 18, C.P.C. but the object of the
amendments introduced by Rules 6A to 6G are
conferment of a statutory right to the defendant to
set up a counterclaim independent of the claim on
the basis of which the plaintiff laid the suit, on his
own cause of action. In sub-rule (1) of Rule 6A, the
language is so couched with words of wide width as
to enable the parties to bring his own independent
cause of action in respect of any claim that would
be the subject matter of an independent suit.
Thereby, it is no longer confined to money claim or
to cause of action of the same nature as original
action of the plaintiff. It need not relate to or be
connected with the original cause of action or
matter pleaded by the plaintiff. The words "any
right or claim in respect of a cause of action
accruing with the defendant" would show that the
cause of action from which the counter-claim arises
need not necessarily arise from or have any nexus
with the cause of action of the plaintiff that
occasioned to lay the suit. The only limitation is
that the cause of action should arise before the
time fixed for filing the written statement expires.
The defendant may set up a cause of action which
has accrued to him even after the institution of the
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suit. The counter-claim expressly is treated as a
cross suit with all the indicia of pleadings as a
plaint including the duty to aver his cause of action
and also payment of the requisite court-fee
thereon. Instead of relegating the defendant to an
independent suit, to avert multiplicity of the
proceeding and needless protection (Sic
protraction), the legislature intended to try both
the suit and the counter-claim in the same suit as
suit and cross suit and have them disposed of in
the same trial. In other words, a defendant can
claim any right by way of a counter-claim in respect
of any cause of action that has accrued to him
even though it is independent of the cause of
action averred by the plaintiff and have the same
cause of action adjudicated without relegating the
defendant to file a separate suit. Acceptance of the
contention of the appellant tends to defeat the
purpose of amendment. Opportunity also has been
provided under Rule 6-C to seek deletion of the
counter-claim. It is seen that the trial Court had not
found it necessary to delete the counter-claim. The
High Court directed to examine the identity of the
property. Even otherwise, it being an independent
cause of action, though the identity of the property
may be different, there arises no illegality
warranting dismissal of counterclaim. Nonetheless,
in the same suit, both the claim in the suit and the
counter-claim could be tried and decided and
disposed of in the same suit. In Mahendra Kumar v.
State of Madhya Pradesh, (1987) 3 SCC 265 : (AIR
1987 SC 1395), where a Bench of two Judges of this
Court was to consider the controversy, held that
since the cause of action for the counter-claim had
arisen before filing of the written statement, the
counter-claim was maintainable. The question
therein was of limitation with which we are not
concerned in this case. Thus considered we find
that there is no merit in the appeal."
31. Going by the ratio decidendi culled out from the
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above decision it is clear that the cause of action need
not be one having nexus with the claim in the suit. But
the restriction is the cause of action should arise before
filing of the written statement or time prescribed for
delivering the statement has expired.
32. In the present case, going by the claim in OS
No.441 of 2004, the plaintiffs have sought partition of the
plaint C schedule property and a separate possession of
1/3rd share after permitting redemption of mortgage. The
2nd plaintiff had shown that an extent of 10 cents of
property is in her possession by virtue of the gift deed
executed by her father in the year 1976. Therefore, the
suit basically being one for redemption of mortgage, the
defendants set up a separate plea for partition as regards
the 2/3rd share over the counter-claim schedule property
which is covered by the gift deed. Pertinently, the 1 st
defendant did not mount the box to adduce evidence as
regards his entitlement to question the gift deed but only
the 2nd defendant had mounted the box. Even if it is
assumed that the 2nd defendant could have given oral
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evidence for and on behalf of the 1 st defendant, the
significant part of the counter-claim is against the
property which is subject matter of a registered gift deed.
33. Pertinently, the gift deed was executed in the
year 1976 by a registered document. The registration of
the document operated as constructive notice under
Section 3 of the Transfer of Property Act, 1882. If at all the
defendants had any grievance as regards the execution of
the gift deed, it ought to have been agitated within the
period of limitation. The silence on the part of the
defendants from 1976 to 2004 in not questioning the gift
deed is also a crucial factor to be considered by this
Court. It must be noted that the defendants claim
possession under late Sadasivan, who asserted that he
was in possession of the property covered by the gift
deed and later transferred the same to the hands of the
plaintiffs. That be so, it passes one's comprehension how
the trial court could have entertained the counter claim,
since the cause of action was entirely different and the
plaint schedule property was also different. This crucial
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aspect has been completely oversighted by the first
appellate court while dismissing the appeals. Therefore, it
is inevitable for this Court to conclude that the
counterclaim preferred by the defendants does not relate
to the cause of action arisen before or after filing of the
suit and thus is not maintainable.
Whether the plaintiff is entitled for an injunction in
OS No.216 of 2004.
34. The finding on this issue is basically a
consequence of the finding of this Court in the above
mentioned questions which have been answered. It
follows that once the plaintiffs in OS No.441 of 2004 are
found to be entitled to maintain a suit for redemption of
mortgage and also consequential partition of 1/3 rd share,
and also in the light of the fact that the counter-claim
preferred does not relate to the cause of action for filing
of the suit, it necessarily follows that the plaintiff in OS
No.216 of 2004 is not entitled to seek injunction in
respect of entire plaint schedule property, especially since
the possession of the plaintiff is excluded by execution of
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a registered document of gift by late Sadasivan, the
father of the plaintiff. Therefore, it follows that the
plaintiff in OS No.216/2004 is not entitled to injunction as
prayed for.
35. Read in cumulative and on the basis of the
discussion which has preceded above, this Court finds
that the judgments rendered by the trial court as well as
the first appellate court are wrong inasmuch as the
evidence and the point of law have been thoroughly
misappreciated. The consequence is that the judgments
of the courts below are liable to be interfered with.
Accordingly, these appeals are allowed as
follows:-
1. RSA No.974 of 2011 is allowed reversing the
judgments of the Sub Court, Neyyattinkara in AS
No.135 of 2007 and that of the 2nd Additional
Munsiff's Court, Neyyattinkara in OS No.441 of 2004.
2. OS No.441 of 2004 will stand decreed and the
plaintiffs are permitted to redeem the mortgage by
payment of 1/3rd of the mortgage amount as
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Rs.1,200/-. Consequentially, the plaintiffs will be
entitled for a preliminary decree of partition and
plaint C schedule property is divided into metes and
bounds by allowing the plaintiffs to take 1/3rd share
over the plaint C schedule property.
3. The judgment and decree, decreeing the
counter- claim in OS No.441 of 2004 is reversed and
the counter-claim is dismissed as not maintainable.
4. The judgment and decree in OS No.216 of 2004
as confirmed in AS No.134 of 2007 is set aside and
the suit will stand dismissed.
5. The plaintiffs in OS No.441 of 2004 are entitled
to cost throughout the proceedings.
Sd/-
EASWARAN S.
JUDGE
SPR
