Madras High Court
M.Jeyaraman vs K.Ganesan on 26 July, 2021
1 A.S.(MD).No.16 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S (MD).No.16 of 2021
M.Jeyaraman ... Appellant / Plaintiff
Vs
K.Ganesan ... Respondent / Defendant
Prayer: Appeal suit filed under Section 96 and Order XLI
Rule 1 of Civil Procedure Code, to set aside the Decree and
Judgement in O.S.No.156 of 2014 dated 13.03.2020 on the file of
the learned V Additional District Judge, Madurai.
For Appellant : Mr.P.Ganapathi Subramanian
For Respondent : Mr.V.OM.Prakash
***
1/18
https://www.mhc.tn.gov.in/judis
2 A.S.(MD).No.16 of 2021
JUDGMENT
The plaintiff in O.S.No.156 of 2014 on the file of the V
Additional District Judge, Madurai, is the appellant in this
appeal.
2. The case of the plaintiff is as follows:-
The defendant K.Ganesan is the father-in-law of his
younger brother; he availed a loan of Rs.15,00,000/- from the
plaintiff on 27.06.2013; the defendant agreed to repay the same
with interest at the rate of 2% per month and handed over the
original title deeds in respect of the suit property as collateral
security; he also handed over Ex.A.2 and Ex.A.3 documents
evidencing the creation of mortgage. The defendant was paying
interest for some time till May 2014. Thereafter he defaulted;
hence, the instant suit was filed for directing the defendant to
pay a sum of Rs.15,00,000/- with interest at the rate of 24% per
annum from 01.06.2014 till the date of realization and in default
to pass final decree to bring the mortgaged property for
realization of the decreetal amount.
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3. The defendant filed written statement controverting the
plaint averments. The defendant denied the plaint allegation that
he borrowed a sum of Rs.15,00,000/- from the plaintiff. He also
denied having executed the documents referred to in the plaint.
He claimed that the original title deeds were taken by him to his
counsel on 04.02.2014 and that he lost the same during transit.
The plaintiff had stolen the same and on the strength of the
stolen documents, the present suit had been instituted. Based on
the rival pleadings, the Court below framed the necessary issues.
4. The plaintiff examined himself as P.W.1. The plaintiff’s
son Harivasagan was examined as P.W.2. Ex.A.1 to Ex.A.7 were
marked. The defendant examined himself as D.W.1 and marked
Ex.B.1 to Ex.B.3. Since the execution of Ex.A.2 and Ex.A.3 by the
defendant was denied, the signatures appearing in Ex.A.2 and
Ex.A.3 were referred for obtaining expert opinion. The forensic
report was marked as Ex.C.1. The forensic expert was also
examined as C.W.1. The forensic opinion went against the
plaintiff. Ex.A.2 and Ex.A.3 propounded by the plaintiff were
rejected. Both the plaintiff as well as the defendant came out
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with the version that the respective documents got lost in transit.
While the defendant would claim that Ex.A.1 and Ex.A.4 original
title deeds were lost by him in transit, the plaintiff would also
claim that Ex.A.2 and Ex.A.3 were lost by him in transit. Both of
them had given complaints before the police. The defendant had
given a complaint before the C2 Police Station who issued Ex.B.2
receipt. Earlier, the defendant had given notice in Malai Malar
on 01.02.2014 about the loss of Ex.A.1 and Ex.A.4.
5. The plaintiff gave a complaint against the defendant in
July 2014 before the CCB, Commissioner of Police, Madurai city
that the defendant after availing loan was refusing to repay the
same. The complaint was forwarded to CCB who after enquiring
the parties, closed the matter by directing the plaintiff to move
the Civil Court for relief. The plaintiff would claim that when he
lodged a complaint that he was very much in possession of
Ex.A.2 and Ex.A.3 original documents which were lost in August
2014. The plaintiff filed interlocutory application for referring
Ex.A.2 and Ex.A.3 for the opinion of the forensic expert. Ex.C.1 is
the report issued by the Deputy Director, RFSL, Madurai. The
expert was examined as C.W.1. He categorically opined that the
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signatures found in Ex.A.2 and Ex.A.3 do not tally with the
admitted signatures found in Ex.A.1 and Ex.A.4.
6. The Court below came to the conclusion that the plaintiff
had not proved his case and dismissed the suit by the impugned
judgment and decree dated 13.03.2020. Questioning the same,
this appeal has been filed.
7. The questions that arise for my consideration are as
follows:
(i) Whether the suit property was mortgaged by
the defendant in favour of the plaintiff by depositing
the original title deeds namely Ex.A.1 and Ex.A.4?
(ii)Whether the defendant had executed Ex.A.2
and Ex.A.3 collateral security deed and assurance
deed?
8. The learned counsel for the respondent submitted that
the trial Court had carefully gone through the entire evidence on
record and rightly concluded that the plaintiff failed to establish
his case. The Court below noted that the plaintiff had failed to
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prove his financial capacity to lend a sum of Rs.15,00,000/- to the
defendant. The plaintiff had claimed that he had withdrawn the
amount from his bank account, but then, the entries in the pass
book were not produced. As regards the original title deed
Ex.A.1 and Ex.A.4, the Court below noted that the defendant had
taken a clear stand that he lost the said documents, when he was
proceeding to meet his advocate on 30.01.2014. This was
established by marking Ex.B.1, Ex.B.2 and Ex.B.3. The Court
below noted that the suit came to be filed only on 22.09.2014. It
was not preceeded by any suit notice. As early as on 01.02.2014
the defendant had given a paper publication about the loss of
documents. Since the plaintiff could not prove Ex.A.2 and Ex.A.3
and since the defendant had explained as to how Ex.A.1 and
Ex.A.4 were lost by him, the Court below chose to dismiss the
suit by the impugned judgment and decree. According to the
learned counsel for the respondent, the reasons assigned by the
Court below are convincing. The impugned judgment and decree
do not warrant any interference.
9. I carefully considered the rival contentions and went
through the evidence on record.
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10. The specific case of the plaintiff is that the defendant is
known to him and is also a close relative. The plaintiff gave a
sum of Rs.15,00,000/- to the defendant on the strength of the
suit mortgage. The plaintiff would claim that the suit mortgage
was created by deposit of Ex.A.1 and Ex.A.4 title documents. He
further claimed that the defendant executed Ex.A.2 and Ex.A.3
dated 28.06.2013 and they were styled as deed of collateral
security and deed of assurance. Ex.A.2 and Ex.A.3 are
photocopies. The defendant denied the signatures attributed to
him in Ex.A.2 and Ex.A.3. They were sent for comparison by a
handwriting expert. The disputed signatures in Ex.A.2 and
Ex.A.3 were compared with the admitted signatures found in
Ex.A.1 and Ex.A.4. The expert opinion went against the plaintiff.
The suit came to be dismissed on the strength of this expert
opinion. The first question that calls for consideration is whether
the Court below was justified in comparing the admitted
signatures found in Ex.A.1 and Ex.A.4 with the disputed
signatures found in Ex.A.2 and Ex.A.3. Ex.A.1 and Ex.A.4 are of
the year 2004. Ex.A.2 and Ex.A.3 are of the year 2013. They
cannot be called as contemporaneous documents. It was held in
Xavier (Deceased) V. Vaidooriyam ( 2009-5-L.W. 271 ) that
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the admitted document as well as the disputed document must
belong to a contemporaneous period. If the documents are not of
the contemporaneous period, then it is not advisable to send the
documents to the expert for his opinion for comparison of
signatures. I therefore hold that the very exercise of comparison
undertaken in this case is errnoneous. In any event when the
defendant disputed the signatures found in Ex.A.2 and Ex.A.3,
the onus lay only on the plaintiff to prove the same. Since this
burden had not been discharged by the plaintiff, Ex.A.2 and
Ex.A.3 will have to be eschewed out of consideration.
11. The case of the plaintiff is that the defendant had
equitably mortgaged the suit property in his favour by deposit of
title deeds. Section 58(f) of The Transfer of Property Act, 1882 is
as follows:-
Mortgage by deposit of title-deeds.-- Where
a person in any of the following towns, namely, the
towns of Calcutta, Madras and Bombay and in any
other town which the State Government concerned
may, by notification in the Official Gazette, specify in
this behalf, delivers to a creditor or his agent
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documents of title to immoveable property, with
intent to create a security thereon, the transaction is
called a mortgage by deposit of title-deeds.
Section 59 of the Transfer of Property Act, 1882 is as follows:-
Mortgage when to be by assurance.
Where the principal money secured is one
hundred rupees or upwards, a mortgage other than a
mortgage by deposit of title-deeds, can be effected
only by a registered instrument signed by the
mortgagor and attested by at least two witnesses.
Where the principal money secured is less than
one hundred rupees, a mortgage may be effected
either by a registered instrument signed and attested
as aforesaid, or (except in the case of a simple
mortgage) by delivery of the property.
12. Thus it is open to the parties to enter into a mortgage
transaction by a bare deposit of title deeds, without anything
more. In this case, Ex.A.1 is the title deed standing in the name
of the defendant. Ex.A.4 is the parent document. The original
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documents are with the plaintiff. The case of the plaintiff is that
these documents pertaining to the suit property were delivered
to him with intent to create a security thereon. The defendant
would of course deny this version and claim that these
documents were lost by him and that they were stolen by the
defendant and that on that basis, the suit was laid.
13. I am called upon to pronounce as to whose version is
more probable; whether the plaintiff's case or the defendant's
version. The parties are related to each other. The defendant is
none other than the father-in-law of the plaintiff's younger
brother. The parties belong to mercantile community who quite
well-versed in the ways of world. The defenant is not a rustic
villager. It is too much of co-incidence that the so-called lost
original documents Ex.A.1 and Ex.A.4 reached the plaintiff. The
defendant has to come out with a credible explanation as to how
the original documents Ex.A.1 and Ex.A.4 could have landed in
the hands of the plaintiff.
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14. The Hon'ble Full Bench of the Madras High Court in
the decision reported in AIR 1968 Mad 223 (The Chief
Controlling Revenue Authority Vs. Pioneer Spinners
Private Ltd.) held that a mortgage by deposit of title deeds,
does not require any writing in law. Besides the deed and the
deposit, what is required is an intention that the deeds shall be
security for the debt. The Hon'ble Supreme Court of India in
Ram Janmabhumi case reported in (2020) 1 SCC 1
(M. Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and Ors.)
had held as follows:-
“ The standard of proof
720. The court in a civil trial applies a standard
of proof governed by a preponderance of
probabilities. This standard is also described
sometimes as a balance of probability or the
preponderance of the evidence. Phipson on Evidence
formulates the standard succinctly : If therefore, the
evidence is such that the court can say “we think it
more probable than not”, the burden is discharged,
but if the probabilities are equal, it is not.
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721. The law recognises that within the
standard of preponderance of probabilities, there
could be different degrees of probability. This was
succinctly summarised by Denning, L.J. In Bater v.
Bater [Bater v. Bater, 1951 P 35 (CA)] , where he
formulated the principle thus : (p. 37)
“… So also in civil cases, the case must be proved by
a preponderance of probability, but there may be
degrees of probability within that standard.The
degree depends on the subject-matter.”
722. The definition of the expression “proved”
in Section 3 of the Evidence Act is in the following
terms:
“3. … “Proved”.—A fact is said to be proved when,
after considering the matters before it, the court
either believes it to exist, or considers its existence
so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it exists.”
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724. Analysing this, Y.V. Chandrachud, J. (as the
learned Chief Justice then was) in N.G. Dastane v. S.
Dastane [N.G. Dastane v. S. Dastane, (1975) 2 SCC
326] held : (SCC pp. 335-36, para 24)
“The belief regarding the existence of a fact may
thus be founded on a balance of probabilities. A
prudent man faced with conflicting probabilities
concerning a fact situation will act on the supposition
that the fact exists, if on weighing the various
probabilities he finds that the preponderance is in
favour of the existence of the particular fact. As a
prudent man, so the court applies this test for finding
whether a fact in issue can be said to be proved. The
first step in this process is to fix the probabilities, the
second to weigh them, though the two may often
intermingle. The impossible is weeded out at the first
stage, the improbable at the second. Within the wide
range of probabilities the court has often a difficult
choice to make but it is this choice which ultimately
determines where the preponderance of probabilities
lies. Important issues like those which affect the
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status of parties demand a closer scrutiny than those
like the loan on a promissory note:‘the nature and
gravity of an issue necessarily determines the
manner of attaining reasonable satisfaction of the
truth of the issue [ Per Dixon, J. In Wright v. Wright,
(1948) 77 CLR 191 (Aust).] , CLR at p. 210’; or as
said by Lord Denning, ‘the degree of probability
depends on the subject-matter’. In proportion as the
offence is grave, so ought the proof to be clear [Blyth
v. Blyth, 1966 AC 643 : (1966) 2 WLR 634 : (1966) 1
All ER 524 (HL)] , All ER at p. 536’. But whether the
issue is one of cruelty or of a loan on a pronote, the
test to apply is whether on a preponderance of
probabilities the relevant fact is proved. In civil cases
this, normally, is the standard of proof to apply for
finding whether the burden of proof is discharged.”
725. The Court recognised that within the
standard of preponderance of probabilities, the
degree of probability is based on the subject-matter
involved.
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726. In State of U.P. v. Krishna Gopal [State of
U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC
(Cri) 928] , this Court observed : (SCC p. 314, para
26)
“26. The concepts of probability, and the degrees of it, cannot obviously
be expressed in terms of units to be mathematically enumerated as to how
many of such units constitute proof beyond reasonable doubt. There is an
unmistakable subjective element in the evaluation of the degrees of
probability and the quantum of proof. Forensic probability must, in the
last analysis, rest on a robust common sense and, ultimately, on the
trained intuitions of the Judge.” ”
Respectfully bearing in mind the aforesaid principles, I have no
hesitation to come to the conclusion that the version projected
by the defendant is unbelievable. There is a thought experiment
in probability theory raising a question if a monkey by random
typing can produce a Shakespearean sonnet. The answer is yes
but only at infinity. Courts cannot go by such extreme
probabilities. Basically Courts have to apply robust
commonsense. It is clearly probable that after availing a sum of
Rs.15,00,000/- from the plaintiff, the defendant deposited Ex.A.1
and Ex.A.4 with an intent to create a security on the suit
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property. When a large sum of money is given as loan, it is quite
natural that the creditor will expect furnishing of title documents
as security. As already noted, a mortgage can be created by bare
deposit of title deeds. Nothing more is required. I therefore hold
that the plaintiff had established his case that the suit property
was equitably mortgaged to him.
15. The next question is what could have been the
mortgage money? According to the defendant, the value of the
property at the time of filing of suit was more than Rs.
75,00,000/-. According to the plaintiff, the mortgage was created
in the year 2013 and that the loan given by him was Rs.
15,00,000/-. Again by applying the civil standard of proof, I hold
that the plaintiff proved his case that he advanced a sum of Rs.
15,00,000/- and that Ex.A.1 title deed and Ex.A.4 parent
document were deposited to create equitable mortgage. If Ex.A.2
and Ex.A.3 had been proved, then the plaintiff would be entitled
to interest at contractual rate. Since Ex.A.2 and Ex.A.3 have not
been established, the plaintiff is entitled only to 6% interest.
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16. The impugned judgment and decree passed by the trial
Court are set aside. The defendant is directed to pay the plaintiff
a sum of Rs.15,00,000/- with interest @ 6% p.a. with effect from
01.02.2014 till the date of realization. The time limit for payment
is three months. If the defendant fails to pay the decretal
amount, it is open to the plaintiff to take steps to bring the suit
property for sale.
17. This appeal suit is allowed accordingly. No costs.
26.07.2021
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The V Additional District Judge,
Madurai.
2. The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
A.S.(MD).No.16 of 2021
26.07.2021
https://www.mhc.tn.gov.in/judis
