Madras High Court
P.Subbiah @ P.Katturajan vs T.Chidambaram (Died) on 1 September, 2021
1 S.A.(MD)NO.452 OF 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.452 of 2012
P.Subbiah @ P.Katturajan ... Appellant/Appellant/
Defendant
Vs.
1. T.Chidambaram (Died)
2. C.Saradambal (Died)
3. C.Balasubramanian
4. Janaki
5. Parameswari
(Respondents 3 to 5 are brought on record as LRs.
of the deceased respondents 1 and 2 vide Order
dated 17.08.2021 made in C.M.P.(MD)Nos.6256,
6258 and 6259 of 2021)
... Respondents/Respondents/
Plaintiffs
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow this appeal setting aside the judgment and
decree dated 24.08.2011 made in A.S.No.14 of 2011 on the
file of the I Additional District Court, Madurai, confirming the
judgment and decree dated 28.01.2011 made in O.S.No.535 of
2006 on the file of the I Additional Subordinate Court,
Madurai.
For Appellant : Mr.R.G.Shankar Ganesh
For R-3 to R-5 : Mr.D.Senthil
***
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2 S.A.(MD)NO.452 OF 2012
JUDGMENT
The defendant in O.S.No.535 of 2006 on the file of the
I Additional Sub Court, Madurai, is the appellant in this
second appeal.
2. The suit was filed by one Chithambaram and his
wife Saradambal for directing the appellant to deliver vacant
possession of the suit property and to receive the othi amount
of Rs.1,55,000/-. The case of the plaintiffs was that the suit
property belonged to them and the appellant herein had
entered into an othi agreement with them on 06.02.2002 for a
period of three years and took possession of the ground floor
for a sum of Rs.70,000/-. Subsequently, he entered into
another othi agreement on 15.05.2002 and took possession of
the first floor after paying a further othi amount of Rs.85,000.
Thus the appellant got into the possession of the suit property
after paying the total sum of Rs.1,55,000/- as othi amount.
During the subsistence of the “othi”, the appellant entered
into a sale agreement on 28.04.2005. The sale consideration
was fixed at Rs.7,90,000/-. On the said date, the appellant paid
a sum of Rs.2,45,000/-. The appellant was to pay the balance
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3 S.A.(MD)NO.452 OF 2012
amount of Rs.3,90,000/- within one month. The grievance of
the plaintiff was that the defendant continued to be in
possession of the property on the basis of “othi” but did not
come forward to perform his part of the obligations under the
sale agreement. Therefore, on 02.02.2006, the plaintiffs issued
notice for cancellation of sale agreement. The appellant issued
reply dated 13.02.2006. A rejoinder notice was issued on
14.03.2006. After issuing the suit notice dated 28.06.2006, the
plaintiffs filed O.S.No.535 of 2006 before the I Additional Sub
Court, Madurai.
3. The appellant filed written statement controverting
the plaint averments. According to the appellant, the plaintiffs'
vendor S.V.Mariyappan had mortgaged the suit property with
a co-operative society in the year 1987 and that encumbrance
had not yet been cleared. The appellant would blame the
plaintiffs for the delay in concluding the sale transaction. The
appellant also pleaded that he is in possession of the suit
property since 06.02.2002 and that he is entitled to the benefit
of part performance provided under section 53A of the
Transfer of Property Act, 1882. Based on the divergent
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4 S.A.(MD)NO.452 OF 2012
pleadings, the trial Court framed the necessary issues. The
first Plaintiff examined himself as P.W.1 and one Gopal was
examined as P.W.2. Ex.A.1 to Ex.A.4 were marked. The
appellant examined himself as D.W.1 and two other witnesses
on his side. Ex.B.1 to Ex.B.10 were marked. After a
consideration of the evidence on record, the trial Court vide
judgment and decree dated 28.01.2011 decreed the suit as
prayed for.
4. Aggrieved by the same, the appellant filed A.S.
No.14 of 2011 before the I Additional District Judge, Madurai.
The first appellate Court by judgment and decree dated
24.08.2011, dismissed the appeal and confirmed the decision
of the trial Court. Challenging the same, this second appeal
came to be filed.
5. The second appeal was admitted on the following
substantial questions of law:-
“(1) Whether the Courts below are
correct in law in not taking into consideration
that the relationship of mortgagor and
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5 S.A.(MD)NO.452 OF 2012
mortgagee has got merged with the relationship
of vendor and vendee under the agreement of
sale?
(2) Whether the Courts below failed to
take into consideration that the respondents
have themselves admitted that the othi amount
has got merged with the sale agreement
consideration? “
6. During the pendency of the appeal, the original
plaintiffs passed away and their legal heirs have come on
record. The learned counsel appearing for the appellant
submitted that he had independently filed a suit for specific
performance. The suit was dismissed and the first appellate
Court had confirmed the same. He had filed the second appeal
and the same has been numbered only very recently. He
requested this Court to take up this second appeal along with
the second appeal filed by him against the dismissal of his suit
for specific performance. He also submitted that the appellant
is very much entitled to take protection under Section 53A of
the Transfer of Property Act, 1882. According to him, the sale
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6 S.A.(MD)NO.452 OF 2012
agreement was entered into with the original plaintiffs during
the subsistence of the othi agreement. Therefore, Section 53A
of the Transfer of Property Act, 1882 would come to his
rescue. He called upon this Court to answer the substantial
questions of law in favour of the appellant and set aside the
impugned judgment and decree and dismiss the suit.
7. Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree do not warrant any interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. As rightly pointed out by the learned counsel
appearing for the respondents, the appellant did not raise any
counter claim in O.S.No.535 of 2006. Instead he
independently filed a suit for specific performance. Therefore,
there is no justification in the request made by the learned
counsel for the appellant that this second appeal should be
taken up along with the second appeal filed by him arising out
of the suit for specific performance.
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7 S.A.(MD)NO.452 OF 2012
10. Having negatived the request made by the
learned counsel appearing for the appellant, I go into the
merits of the matter. There is no dispute that the appellant
was in possession of the suit property based on the othi
agreements dated 06.02.2002 and 15.02.2002(Ex.B.1 and
Ex.B.2). There is again no dispute that the total othi amount is
Rs.1,55,000/-. The othi agreements were only for a period of
three years which has long since expired. Othi is a form of
mortgage. When the mortgagors want to redeem the
mortgage in terms of the mortgage deed, the mortgagee
cannot have any defence except those that are available to
him under law. Knowing that he has no defence, the appellant
wants to shed his identity as a mortgagee and assume the role
of an agreement holder. The appellant cannot have the said
benefit for the simple reason that the sale agreement dated
28.04.2005(Ex.B.3) has not been registered. The decision
reported in 2020-1-L.W.940 (T.S.Govindarajan V.
M.Govindarajan) relied on by the learned counsel appearing
for the respondents is on the point. It has been held therein
that in view of the amendment made vide Act 48 of 2001 that
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8 S.A.(MD)NO.452 OF 2012
came into force on 24.09.2001, if a sale agreement executed
on or after 24.09.2001 is not registered, it shall have no effect
for the purpose of Section 53A of the Transfer of Property Act,
1882. Though the appellant is in possession of the suit
property right from February 2002, it cannot be construed
that his possession is in furtherance of Ex.B.3 sale agreement.
This is because to claim protection under Section 53A of the
Transfer of Property Act, 1882, the document in question
should have been registered. It has been categorically laid
down in the said decision that unless the document is
registered, one cannot seek part performance. Once the
defence of part performance put forth by the appellant is
rejected, the appellant does not have any other defence. The
Courts below rightly decreed the suit. The impugned
judgment and decree do not warrant any interference. The
substantial questions of law are answered against the
appellant. This second appeal is dismissed.
11. Before dictating the judgment, I put it to the
learned counsel appearing for the respondents that the
respondents cannot in all fairness retain the advance amount
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9 S.A.(MD)NO.452 OF 2012
of Rs.2,45,000/- paid by the appellant. The learned counsel
appearing for the respondents on instructions states that
while filing the execution petition, the respondents would
deposit the said amount of Rs.2,45,000/- to the credit of E.P.
and that they will not have any objection for the appellant to
withdraw the same. This undertaking is recorded.
12. I also make it clear that the dismissal of this
second appeal will not have any bearing on the second appeal
that is said to have been filed by the appellant with regard to
specific performance. It will be disposed of on merits and in
accordance with law uninfluenced by the outcome of this
second appeal. No costs.
01.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
2. Web copy of this order shall be uploaded
on 02.09.2021.
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10 S.A.(MD)NO.452 OF 2012
Note : Web copy of this order
shall be uploaded on 02.09.2021
G.R.SWAMINATHAN,J.
PMU
To:
1. The I Additional District Judge,
Madurai.
2. The I Additional Subordinate Judge,
Madurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
S.A.(MD)No.452 of 2012
01.09.2021
https://www.mhc.tn.gov.in/judis/
