Madras High Court
Dakshinamurthy vs Dhanabal (Died) on 26 February, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 28.07.2021
PRONOUNCED ON : 06.08.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.No.794 of 2007
and
M.P.No.1 of 2007
1.Dakshinamurthy
2.Vairamammal
3.Saroja
4.Usharani
5.Devi
6.Suguna ... Appellants
..Vs..
Dhanabal (Died)
2.Muthalayal
3.Saraswathi
4.Gunasekaran
5.Venkatesan
6.Chandira
7.Arumugam
8.Balamurugan
9.Sasikala ...Respondents
(R2 to R9 were brought on
record as LRs of the deceased
first respondents vide order of
court dated 26.02.2021 made
in CMP.Nos.8721, 8731 &
8723 of 2019 in S.A.No.794 of
2007.
1/36
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Prayer: Second Appeal filed under Section 100 of Code of Civil
Procedure against the Judgment and Decree passed in A.S.No.9 of 2005
dated 27.09.2006 on the file of the Subordinate Judge, Chidambaram
reversing the Judgment and Decree passed in O.S.No.391 of 1993 dated
08.04.2004 on the file of the Principal District Munsiff, Chidambaram.
For Appellants : Mr.K.Sukumaran
For Respondents : Mr.A.Muthukumar
JUDGMENT
(Heard through Video conferencing)
This second appeal has been filed challenging the reversal findings
of the lower appellate court namely Sub Court, Chidambaram by its
Judgment and Decree dated 27.09.2006 passed in A.S.No.9 of 2005 by
which the suit filed by the Appellants in O.S.No.391 of 1993 before the
Principal Munsif Court, Chidambaram has been dismissed by reversing
the Judgment and Decree dated 08.04.2004 passed in favour of the
Appellants/plaintiffs.
2. For the sake of convenience, the parties are described as per
their litigative status in the suit O.S.No.391 of 1993.
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3. The plaintiffs claim that they are the legal heirs of
Krishnamoorthi Padayachi. Tamil selvan and Dhakshnamoorthy are his
sons who are the first and second plaintiffs and another son of
Krishnamoorthi Padayachi by name Paramanandham, predeceased
Krishnamoorthi Padayachi leaving behind Vairam Ammal and Saroja as
his legal heirs who are the plaintiffs 3 and 4 in the suit O.S.No.391 of
1993. During the pendency of the suit, the first plaintiff died leaving
behind the fifth, sixth and seventh plaintiffs as his legal heirs. The
defendant Dhanapal died pending the second appeal and his legal heirs
are the 2nd to 7th respondents who were brought on record in this second
appeal.
4. The suit was filed for redemption of a registered mortgage deed
dated 11.05.1965 which was executed by Krishnamoorthy Padayachi in
favour of the defendant Dhanapal in respect of the property measuring
0.09 cents out of 0.20 cents in R.S.No.35/27, Veeramudaya Natham
Village, Sethiathope Sub Registration District which is the suit schedule
property. A consequential relief of possession was also sought for.
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Under the usufructuary mortgage deed, Krishnamoorthy borrowed a sum
of Rs.200/- from the defendant and handed over possession of the suit
schedule property to the defendant by way of security. The suit for
redemption of mortgage deed was filed by the plaintiffs since according
to them, the defendant failed to redeem the mortgage, despite the
plaintiffs readiness and willingness to discharge the loan. It is also their
case that they had issued legal notices dated 02.04.1993 and 02.09.1993
to the defendant demanding the defendant to return the original mortgage
deed with the discharge endorsement and put the plaintiffs in possession
of the suit schedule property. According to them, since the defendant did
not come forward with any response, the plaintiffs deposited Rs.200/-
and sought for redemption of the suit schedule property in O.S.No.391 of
1993. According to the plaintiffs, the suit was filed within 30 years from
the date of mortgage and hence, it is within the period of limitation as
prescribed under Article 61 of the Limitation Act.
5. The defendant Dhanabal filed written statement and additional
written statement stating as follows:
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(a) He has denied the execution of the mortgage deed dated
11.05.1965 by Krishnamoorthy Padayachi in his favour;
(b) He has denied the title of Krishnamoorthy Padayachi over the
suit schedule property;
(c) The plaintiffs alone are not only the legal representatives of the
deceased Krishnamoorthy Padayachi and without impleading all his legal
representatives, the suit is liable to be dismissed;
(d) The defendant has been enjoying the suit property for more
than 30 years and therefore, the suit is not maintainable;
(e) There is no relationship of mortgagor and mortgagee between
the plaintiffs and the defendant.
6. Issues were framed by the trial court. The second plaintiff
Dakshnamoorthy was examined as PW1 and the defendant Dhanapal was
examined as DW1 before the trial court.
7. The trial court by its Judgment and decree dated 08.04.2004 in
O.S.No.391 of 1993 decreed the suit as prayed for in favour of the
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plaintiffs. Aggrieved by the Judgment and decree dated 08.04.2004
passed in O.S.No.391 of 1993 by the Principal District Munsif Court,
Chidambaram, the defendant filed an appeal before the Sub Court,
Chidambaram in A.S.No.9 of 2005. By its Judgment and Decree dated
27.09.2006, the lower appellate court namely the Sub Court,
Chidambaram reversed the findings of the trial court by dismissing the
suit. The lower appellate court has proceeded to dismiss the suit on the
following grounds:
(a) The defendant has specifically denied the execution of the
mortgage deed dated 11.05.1965 (Ex.A1);
(b) Under section 59 of the Transfer of Property Act, a mortgage
deed is required to be attested by at least two witnesses.
(c) Under section 68 of the Indian Evidence Act, if a document is
required to be attested, it shall not be used as evidence unless and until
atleast one attesting witness has been examined as a witness for the
purpose of proving its execution.
(d) Section 69 of the Indian Evidence Act provides the procedure
in case, the attesting witnesses are not found. Under this section, the
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execution can be proved by proving the attestation of one attesting
witness at least in his hand writing and that, the signature of the person
executing the document is in the handwriting of that person.
(e) The document is 30 years old. The Court may presume
attestation and dispense with proof as per section 90 of the Indian
Evidence Act. But this presumption is available only in respect of
original deed, not in respect of a copy of the deed. In the suit, the
plaintiffs have produced only the registration copy of the mortgage deed
and not its original. Section 90 of the Indian Evidence Act will not apply
to the registration copy of the mortgage deed and will apply only to the
original.
(f) Plaintiffs have not given any notice to the defendants to
produce the original document. On refusal to produce, the plaintiffs
could have given secondary evidence without calling attesting witnesses.
In such a case, execution and attestation are presumed by the Court under
section 89 of the Indian Evidence Act. But this procedure has not been
followed by the plaintiffs.
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(g) Plaintiffs have failed to prove the execution and attestation of
the alleged mortgage deed though the defendant has also not proved his
title over the suit schedule property.
8. Aggrieved by the Judgment and decree dated 27.09.2006 passed
by the lower appellate court in A.S.No.9 of 2005, this second appeal has
been filed by the plaintiffs.
9. At the time of admission of this second appeal on 13.08.2007,
this Court formulated the following substantial questions of law:
“ a) Whether or not the Exhibit A.1, the mortgage
deed, is duly executed and attested and the same has been
proved by the Appellants/plaintiffs?
b) Whether or not the production of certified copy
of the mortgage deed is sufficient and admissible in
evidence reflecting the case of the plaintiffs, in view of
the provisions contained in Section 57(5) of the
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Registration Act and Section 65(e) and (F) and Section 74
of the Indian Evidence Act?”
10. Learned counsel for the Appellants in support of the
Appellants'/plaintiffs' case, has relied upon the following authorities:
(a) A single bench decision of the Madras High Court in the case
of A.Sankaralingam vs. Arunachala Reddiar and others reported in
1993 1 MLJ 472;
Relying upon the said decision, the learned counsel for the Appellants
would submit that the usufructuary mortgage deed dated 11.05.1965
which has been marked as Ex.A1 has been admitted without objection by
the defendant and therefore, the lower appellate court has erred in
holding that Ex.A1 has not been proved. Relying upon the very same
decision, he would also submit that under section 57(5) of the
Registration Act, a certified copy from the registration office is
admissible in evidence for the purpose of proving the contents of the
Original document. Therefore according to him, Ex.A1, the certified
copy of the registered mortgage deed is an admissible piece of evidence.
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But according to him, the lower appellate court has erroneously rejected
the same on the ground that the original has not been filed.
(b) A decision of the Hon'ble Supreme Court in the case of Ishwar
Dass Hain (dead) through LRS., vs. Sohan Lal (dead) by LRs., reported
in AIR 2000 SC 426;
Relying upon the said decision, the learned counsel for the Appellants
would submit that though in the written statement, the defendant has
denied the execution of the Mortgage deed (Ex.A1), but having admitted
the execution in his deposition (DW1), there was no necessity for the
plaintiffs to examine the attesting witnesses as the mortgage deed dated
11.05.1965 EX.A1 stood proved by the production of the certified copy.
(c) A decision of the Hon'ble Supreme Court in the case of Iqbal
Basith and others vs. N.Subbalakshmi and others reported in 2021 (2)
CTC 104
Relying upon the said decision, the learned counsel for the Appellants
would submit that the certified copy of the mortgage deed (Ex.A1)
having been marked without any objection from the defendant and
sufficient reasons having been given by the plaintiffs for not having
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produced the original and further, the said document is more than 30
years old, the lower appellate court has erred in rejecting the said
document. According to the Appellants/plaintiffs, having discharged the
burden of proving the document (Ex.A1), the onus lies on the defendant
to disprove the same. Learned counsel for the Appellants also drew the
attention of this Court to the findings of the trial court which has decreed
the suit in favour of the plaintiffs and would submit that the trial court
has rightly appreciated the evidence available on record and only
thereafter has decreed the suit in favour of the plaintiffs.
11. Per contra learned counsel for the respondents drew the
attention of this Court to the written statement filed by the defendant as
well as the deposition of PW1 and DW1. He would submit that the lower
appellate court has rightly appreciated the evidence available on record
and has rightly held that the plaintiffs have not proved the execution of
the mortgage deed dated 11.05.1965. He drew the attention of this Court
to the reasons given by the lower appellate court for reversing the
findings of the trial court and would support the same. The learned
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counsel for the respondents relies upon the following authorities in
support of his submissions:
(a) A decision of the Hon'ble Supreme Court in the case of Sri
Lakni Baruan and Others vs. Sri Padma Kanta Kalita & Others
reported in 1996 8 SCC 357.
Relying upon the said decision, he would submit that the lower appellate
court has rightly rejected the mortgage deed (Ex.A1), eventhough it is
more than 30 years old. He would submit that as per the aforesaid
decision, the Court has discretion to refuse benefit of such presumption
under section 90 of the Indian Evidence Act, when due execution of the
documents appears to be doubtful. He would further submit that the
defendant having categorically denied the execution of mortgage deed
dated 11.05.1965 and the plaintiffs having filed only the certified copy of
the said document, the lower appellate court was right in rejecting Ex.A1,
Mortgage Deed. According to him, the presumption under section 90 of
the Indian Evidence Act, 1872 is not available for a certified copy.
(b) A decision of the Hon'ble Supreme in the case of H.Siddiqui
(Dead) by Lr vs. A.Ramalingam reported in (2011) 4 SCC 240.
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Relying upon the said decision, the learned counsel for the respondents
would submit that the secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a true copy of the
original. According to him, having not satisfied the said test, the lower
appellate court has rightly rejected Ex.A1 mortgage deed dated
11.05.1965.
Discussion:
12. The document in dispute is a registered mortgage deed dated
11.05.1965 which has been marked as Ex.A1 before the trial court. The
defendant denies the execution of the said document and further it is his
case that it has not been proved in accordance with sections 68 and 69 of
the Indian Evidence Act read with section 59 of the Transfer of Property
Act which requires a mortgage deed to be attested by at least two
witnesses. However, it is the case of the plaintiffs that the disputed
document namely the registered mortgage deed dated 11.05.1965 marked
as Ex.A1 is an ancient document being more than 30 years old and
therefore, the court shall presume attestation and dispense with proof as
per section 90 of the Indian Evidence Act. It is also the case of the
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defendant that since notice to produce the mortgage deed dated
11.05.1965 (Ex.A1) was not given by the plaintiffs during the pendency
of the suit, presumption under section 89 of the Transfer of Property Act
as to the due execution of Ex.A1 cannot also be inferred.
13. The trial court in O.S.No.391 of 1993 has decreed the suit filed
by the plaintiffs on 08.04.2004. However, the lower appellate court in its
judgment dated 27.09.2006 in A.S.No.9 of 2005 filed by the defendant
has reversed the findings of the trial court and allowed the appeal.
14. Section 90 of the Indian Evidence Act reads as follows:
“ 90. Presumption as to documents thirty years old.
—Where any document, purporting or proved to be thirty
years old, is produced from any custody which the Court
in the particular case considers proper, the Court may
presume that the signature and every other part of such
document, which purports to be in the handwriting of any
particular person, is in that person’s handwriting, and, in
the case of a document executed or attested, that it was
duly executed and attested by the persons by whom it
purports to be executed and attested.
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Explanation.—Documents are said to be in proper custody
if they are in the place in which, and under the care of the
person with whom, they would naturally be; but no
custody is improper if it is proved to have had a legitimate
origin, or if the circumstances of the particular case are
such as to render such an origin probable.”
15. Admittedly, the disputed document namely the mortgage deed
dated 11.05.1965 marked as Ex.A1 in the suit was more than 30 years
old, when it was marked as an exhibit before the trial court. There is no
correlation between section 90 of the Indian Evidence Act and sections
68 and 69 of the Indian Evidence Act read with section 59 of the
Transfer of Property Act. Section 90 of the Indian Evidence Act is an
independent provision dealing with ancient documents (i.e., documents
more than 30 years old) and is not subject to sections 68 and 69 of the
Indian Evidence Act read with section 59 of the Transfer of Property Act.
Sections 68 and 69 of the Indian Evidence Act and section 59 of the
Transfer of Property Act lay down the normal rule for proof of
documents and section 90 of the Indian Evidence Act is an exception to
the normal which permits the courts to exercise its discretion to presume
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that the document which is thirty years old has been duly executed and
attested. The only condition that will have satisfied is that under section
90 of the Indian Evidence Act, the courts will have to exercise its powers
judiciously and not arbitrarily.
16. In the case on hand, the plaintiffs have filed a certified copy of
the mortgage deed dated 11.05.1965 which has been marked as Ex.A1
before the trial court. As seen from the evidence available on record, the
defendant also seems to have not raised any objection while the said
document was allowed to be marked as an exhibit before the trial court.
17. The certified copy marked as Ex.A1 pertains to the year 1965
and admittedly, it was marked as an exhibit only after 30 years. Infact,
the explanation to section 90 of the Indian Evidence Act makes it clear
that the documents are said to be in proper custody, if they are in the
place in which, and under the care of the person with whom, they would
naturally be. But no custody is improper if it is proved to have had a
legitimate origin, or if the circumstances of the particular case are such as
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to render such an origin probable. “The proper custody of a documents
means it deposit with a person and in a place, where if authentic, it might
naturally and reasonably be expected to be found and it does not create
suspicion or fraud.
18. Section 57(5) of the Registration Act, 1908 also makes it clear
that all copies given by the Registering officers under section 57 of the
Registration Act shall be permissible for the purpose of proving the
contents of the original document. In the case on hand, the plaintiffs have
produced the certified copy of the disputed mortgage deed dated
11.05.1965 which has been marked as Ex.A1 obtained from the
Registrar's office where the said document was executed and registered.
It is not the case of the defendant that the mortgage deed dated
11.05.1965 (Ex.A1) is a fabricated and forged document. Excepting for
making a bald denial of the execution of the mortgage deed dated
11.05.1965 (Ex.A1), the defendant has not let in any oral and
documentary evidence before the trial court to show that it is a forged
and fabricated document.
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19. The explanation to section 90 of Indian Evidence Act makes it
clear that if the custody of any document which is more than 30 years old
is brought and placed before the court from a legitimate origin, the Court
may presume that such a document has been duly executed and attested.
20.In the case on hand, the pre suit notices which were marked as
Ex.A2 & Ex.A4 sent by the plaintiffs calling upon the defendant to
redeem the mortgage and to return the original mortgage deed dated
11.05.1965 were duly acknowledged by the defendant.
21. Exercising the power under section 90 of the Indian Evidence
Act, the trial court has presumed that the certified copy of the mortgage
deed dated 11.05.1965 marked as Ex.A1 has been validly executed and
attested and has granted the relief of redemption of mortgage and
possession in favour of the plaintiffs. However, the lower appellate court
by its judgment and decree dated 27.09.2006 in A.S.No.9 of 2005 has
reversed the findings of the trial court by dismissing the suit.
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22. As observed earlier, section 90 of the Indian Evidence Act
stands independently of sections 68 and 69 of the Indian Evidence Act
read with section 59 of the Transfer of Property Act. Section 90 of the
Indian Evidence Act embodies the rule of necessity. The rule has been
established for the sake of general convenience, founded on the great
difficulty and often impossibility of proving handwriting after a long
lapse of time.
23. In the case on hand, the certified copy of the mortgage deed
(Ex.A1) which is more than 30 years old has been filed by the plaintiffs
as a secondary evidence in lieu of the original and eventhough the
defendant has denied the execution of such a document, it is not their
case that such a document was not executed and registered before the
Registrars office from where the plaintiff has obtained a certified copy.
Ex.A1 has also been retrieved only from the proper custody of the
Registrar's office. The trial court has considered all the aforementioned
factors and has also considered the fact that the defendant did not raise
any objection at the time of marking of Ex.A1 and only thereafter, has
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presumed its validity and proper attestation exercising its powers under
section 90 of the Indian Evidence Act.
24. Further, the mortgage deed dated 11.05.1965 marked as Ex.A1
is a public document within the meaning of section 74(2) of the Indian
Evidence Act. Section 76 of the Indian Evidence Act enables a public
officer to give any person on demand, a copy of the public document on
payment of the necessary charges. Section 77 of the Indian Evidence Act
also makes it clear that the certified copies of public documents may be
produced as proof of the contents of the public documents or parts of the
public documents of which they purport to be copies. Section 74 to
section 77 of the Indian Evidence Act which are the relevant sections
referred to supra are extracted hereunder:
“74.Public documents.—The following documents
are public documents :—
(1)Documents forming the acts, or records of the
acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial
and executive, or of a foreign country;
(2)Public records kept of private documents.
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75.Private documents.—All other documents are
private.
76.Certified copies of public documents.—Every
public officer having the custody of a public document,
which any person has a right to inspect, shall give that
person on demand a copy of it on payment of the legal
fees therefor, together with a certificate written at the
foot of such copy that it is a true copy of such document
or part thereof, as the case may be, and such certificate
shall be dated and subscribed by such officer with his
name and his official title, and shall be sealed, whenever
such officer is authorized by law to make use of a seal;
and such copies so certified shall be called certified
copies.
77.Proof of documents by production of certified
copies.—Such certified copies may be produced in proof
of the contents of the public documents or parts of the
public documents of which they purport to be copies.”
25. In the case on hand, the procedure adopted by the plaintiffs to
get the certified copy of the mortgage deed (Ex.A1) has also not been
questioned by the defendant. The defendant has also not pleaded that the
certified copy of Ex.A1 was obtained improperly by not following the
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procedure contemplated law. It is also not his case that the mortgage
deed Ex.A1 is not a public document coming within the purview of
section 74 of the Indian Evidence Act. The plaintiffs have proved that the
mortgage deed dated 11.05.1965 is a valid document. The trial court has
rightly decreed the suit for redemption in favour of the plaintiffs as
sections 68 and 69 of the Indian Evidence Act as well as section 59 of the
Transfer of Property Act which the learned counsel for the defendant has
relied upon before this Court has no bearing for the facts of the present
case as those sections lays down the normal rule of evidence whereas
section 90 of the Indian Evidence Act which stands independently on a
different footing altogether is an exception to the normal rule of evidence
which permits the courts by exercising its judicious discretion to admit
any document which is 30 years old as a piece of evidence. Admittedly,
in the case on hand, the certified copy of the mortgage deed (Ex.A1) has
been obtained from the proper custody of the Registering officer and it is
also not in dispute that it is a public document coming within the
purview of Section 74(2) of the Indian Evidence Act.
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26. However, the lower appellate court has erroneously reversed
the findings of the trial court by rejecting the mortgage deed dated
11.05.1965 (Ex.A1) on the ground that (a) the execution of the same has
not been proved by the plaintiffs in accordance with sections 68 and 69
of the Indian Evidence Act and section 59 of the Transfer of Property Act
and (b) presumption under section 90 of the Indian Evidence Act is
applicable only for the original documents and not for a certified copy.
27. The decision relied upon by the learned counsel for the
Appellants/plaintiffs in the case of A.Sankaralingam vs. Arunachala
Reddiar and others reported in 1993 1 MLJ 472 supports the case of the
plaintiffs. In the referred case also, the objection regarding the mode of
proof of a document was not taken at the time of marking of the said
document as an exhibit. Learned Single Judge of this Court in the said
decision held that the objection regarding the mode of proof of a
document has to be taken at the time when it is being exhibited and not at
a later stage and also held that a piece of evidence even assuming not
proved in proper manner which has been admitted without objection, it is
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not open to the opposite party to challenge it at a later stage. In the case
on hand also, the certified copy of the mortgage deed (Ex.A1) was
allowed to be marked as an exhibit by the plaintiffs as the defendant did
not raise any objection when the said document was marked as an exhibit
and only in the later stage of litigation, he has raised objection with
regard to its marking.
28. The execution of the mortgage deed dated 11.05.1965 (Ex.A1)
does not also appear to be doubtful in view of the fact that there is no
evidence to show that the said document was not executed and registered
before the concerned registrar office on 11.05.1965. The plaintiffs have
also pleaded in their plaint as well as deposed before the trial court that
they have not filed the original of Ex.A1 only due to the fact that despite
issuing of notices to the defendant prior to the filing of the suit, the
defendant failed to redeem the mortgage and return the original mortgage
deed. Therefore, the plaintiffs have laid proper foundation in his pleading
as well as through his deposition for admission of secondary evidence of
Ex.A1 under section 63 of the Indian Evidence Act. Further, when the
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defendant has also not pleaded or proved forgery or fabrication of the
disputed document Ex.A1 by the plaintiffs, the presumption of its
validity and execution under section 90 of the Indian Evidence Act by
the trial court is a correct finding.
29. Section 57(5) of the Registration Act, 1908 also makes it clear
that all certified copies issued by the Registering Officers pertaining to
book numbers 1, 2, 3 & 4 shall be admissible for the purpose of proving
the contents of the original document. In the case on hand, admittedly,
the mortgage deed (Ex.A1) has been issued by the Registering Officer
and it falls under one of the aforementioned book entries and therefore,
the certified copy of the mortgage deed (Ex.A1) is admissible as a piece
of evidence for the purpose of proving the contents of the original
mortgage deed.
30. The decisions relied upon by the learned counsel for the
respondents in the case of (a) Sri Lakni Baruan and Others vs. Sri
Padma Kanta Kalita & Others reported in 1996 8 SCC 357 and (b)
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H.Siddiqui (Dead) by Lr vs. A.Ramalingam reported in (2011) 4 SCC
240 have no bearing for the facts of the instant case, since the plaintiffs
have through their pleadings and oral and documentary evidence have
been able to establish the fundamental evidence required for admission
of secondary evidence of the mortgage deed dated 11.05.1965 marked as
Ex.A1. Further, when due execution of the mortgage deed dated
11.05.1965 (Ex.A1) does not appear to be doubtful, the trial court has
rightly exercised its discretion judiciously by holding the said document
to be admissible in evidence.
31. The lower appellate court by total non application of mind to
the difference between section 90 of the Indian Evidence Act which is
independent of Sections 68 and 69 of the Indian Evidence Act and
section 59 of the Transfer of Property Act has erroneously reversed the
findings of the trial court and dismissed the suit by giving untenable
reasons which on the face of it is not in accordance with law.
32. The decision of the Hon'ble Supreme court in the case of
Ishwar Dass Hain (dead) through LRS., vs. Sohan Lal (dead) by LRs.,
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reported in AIR 2000 SC 426 relied upon by the learned counsel for the
Appellants/plaintiffs also supports the case of the plaintiffs. In that case
also, the certified copy of the mortgage deed was filed by the plaintiffs
and the defendant was called upon to file the original. Since the original
was not produced, the Hon'ble Supreme Court held that when the
execution of the mortgage deed has not been specifically denied by the
mortgagee, it was not necessary for the plaintiffs to call the attestor into
the witness box. The Hon'ble Supreme Court held that in such a case, a
certified copy of the mortgage deed is sufficient to prove the execution
of the said deed. In the case on hand also, excepting for a bald denial of
the execution of mortgage deed dated 11.05.1965 marked as Ex.A1 by
the defendant, there is no specific denial made by the defendant in his
written statement as required under Order 8 Rule 3 to Rule 5 of CPC.
Order 8 Rule 3 to Rule 5 of CPC reads as follows:
“3.Denial to be specific.- It shall not be sufficient for
a defendant in his written statement to deny generally, he
must do so specifically with each allegation of fact of
which he does not admit the truth, except damages.
4.Evasive denial.- Where a defendant denies an
allegation of fact in the plaint, he must not do so evasively,
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but answer the point of substance. Thus, if it is alleged that
he received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount,
but he must deny that he received that sum or any part
thereof or else set out how much he received. And if an
allegation is made with diverse circumstances, it shall not
be sufficient to deny it along with those circumstances.
5.Specific denial.- (1) Every allegation of fact in the
plaint, if not denied specifically or by necessary
implication or stated to be admitted in the pleading of the
defendant, shall be taken to be admitted except as against a
person under disability;
Provided that the court may in its discretion require any
fact so admitted to be proved otherwise than by such
admission.
(2) Where the defendant has not filed a pleading, it
shall be lawful for the court to pronounce judgment on the
basis of the facts contained in the plaint, except as against
a person under a disability, but the court may, in its
discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to
sub-rule (2), the court shall have due to the fact whether
the defendant could have or has engaged a pleader.
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(4) Whenever a judgment is pronounced under this
rule, a decree shall be drawn up in accordance with such
judgment and such decree shall bear the date on which the
judgment was pronounced.”
33. When there has been no specific denial as contemplated under
Order VIII Rule 3 to Rule 5 of CPC, the trial court has rightly held that
Ex.A1 mortgage deed is admissible in evidence. Any denial must be
specific and explicit and cannot be a general denial which is the case of
the defendant in the instant case. The defendant has also not pleaded that
they have become the owner of the suit schedule property by adverse
possession. The certified copy of the mortgage deed which is more than
30 years old and produced from proper custody with explanation for non-
production of original, it shall be presumed that official acts were
properly performed for the issuance of the certified copy. The plaintiffs
have satisfied all the statutory requirements required for admissibility of
secondary evidence under section 63 of the Indian Evidence Act for the
purpose of getting the benefit of section 90 of the Indian Evidence Act
which enables the court to presume that the mortgage deed (Ex.A1) was
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validly executed and attested.
34. The decision relied upon by the learned counsel for the
Appellants/plaintiffs in the case of Iqbal Basith and others vs.
N.Subbalakshmi and others reported in 2021 (2) CTC 104 applies to the
facts of the instant case. In that case also, photocopies of documents over
30 years old were produced and marked as exhibit without objection and
the genuineness of the same was questioned by the defendant, the
Hon'ble Supreme Court held that the documents more than 30 years old
produced from proper custody with an explanation for non-production of
original, the presumption of the said document under section 90 of the
Indian Evidence Act is valid.
35. Under this section, a presumption may be drawn in favour of
document of thirty years old or what is known as Ancient Documents.
Ordinarily whenever the execution of a document is required to be
proved, rules relating to the proof of the execution of a document as
provided under relevant provisions of Indian Evidence Act are required
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to be proved. But Section 90 of the Indian Evidence Act is an exception,
where if the document to be proved is 30 years old and is produced from
any custody which the court in the particular case considers proper, the
general rules of evidence as found in sections 68 and 69 of the Indian
Evidence Act and section 59 of the Transfer of Property Act will not
apply.
36. The plaintiffs have deposited a sum of Rs.200/- which is the
loan amount under the mortgage deed dated 11.05.1965 (Ex.A1) before
the trial court. In the written statement, the defendant has denied the
existence of the mortgage deed dated 11.05.1965 (Ex.A1). When the
plaintiffs have been able to prove through oral and documentary
evidence about the existence of the mortgage deed (Ex.A1) and when the
defendant has not raised any dispute as to the outstanding amount
payable by the plaintiffs under the said mortgage deed, it has to be
presumed that the sum of Rs.200/- deposited by the plaintiffs before the
trial court is the amount borrowed under the mortgage deed is correct.
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37. The doctrine of clog on redemption is one of the principles
applicable for redemption of mortgage under section 60 of the Transfer
of property Act. The doctrine of clog on redemption is based on the
principle that once a mortgagee he is always a mortgagee. The said
phrase means that the mortgagee would always be a mortgagee and never
become an owner. He cannot transfer the property rights to the third party
as he does not have the authority to pass on the benefits of the property.
The phrase is a part of equity of fairness to ensure no exploitation by the
mortgagee takes place. Accordingly, a mortgage deed establishes two
things, one being the right of the creditor which is limited up to his
interest and other being deducting the residuary interest of the creditor
from it. In a mortgage deed, the right of redemption is always there and
cannot be written of and unless the debtor fails to repay the amount. The
right is equitable to right to redeem.
38. In the case on hand, admittedly, the plaintiffs are the legal heirs
of the deceased Krishnamoorthy Padayachi, the mortgagor under the
mortgage deed dated 11.05.1965(Ex.A1). Even though the defendant has
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contended that there are other legal heirs for the deceased
krishnamoorthy padayachi, he has not pleaded in his written statement as
to who are the other legal heirs. However, it has been the categorical
stand of the plaintiffs that they are the only heirs of the deceased
Krishnamoorthy padayachi. They discharged their burden of establishing
that they are the only legal heirs of Krishnamoorthy Padayachi. Even
though they have not filed the legal heirship certificate of
Krishnamoorthy padayachi before the Trial court, the non filing of the
same is immaterial in view of the fact that the defendant has not given
the names of the other legal heirs if any for the deceased Krishnamoorthy
Padayachi. It can be presumed from the material and evidence available
on record that the plaintiffs are the only legal heirs of the deceased
Krishnamoorthy Padayachi. Therefore this Court is of the considered
view that as interested parties to the mortgaged property, the plaintiffs
are entitled to file the suit for redemption.
39. For the foregoing reasons, the substantial questions of law
formulated by this Court at the time of admission of this second appeal
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are answered in favour of the plaintiffs by holding that (a) Ex.A1
mortgage deed has been duly executed and attested and the same has
been proved by the plaintiffs and (b) the certified copy of the mortgage
deed is sufficient and admissible in evidence under section 90 of the
Indian Evidence Act as the plaintiffs have been able to prove that the
mortgage deed has been duly executed and attested.
40. In the result, the second appeal is allowed and the judgment
and decree of the lower appellate court in A.S.No. 9 of 2005 is hereby set
aside and the judgment and decree dated 08.04.2004 passed by the trial
court namely Principal District Court, Chidambaram in O.S.No.391 of
1993 is hereby confirmed.
.08.2021
nl
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
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To
1. The Subordinate Judge, Chidambaram
2.The Principal District Munsiff, Chidambaram
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ABDUL QUDDHOSE, J.
nl
S.A.No.794 of 2007
and
M.P.No.1 of 2014
.08.2021
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