Madras High Court
Chellammal vs Thangam Finance Company on 19 April, 2022
S.A.(MD)No.620 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.620 of 2010
and
M.P.(MD)No.1 of 2010
1.Chellammal
2.M.Alice Jeyaseli
3.Minor Rosling Jebakumari
4.Minor Vijay Martin ... Appellants / Respondents / Defendants
(Minors 3 & 4 appellants through the 1st appellant)
-Vs-
Thangam Finance Company
Tirunelveli through its Managing Partner
Mr.Soma Sundaram
S/o.Sethuramalingam
Office at 27, Cross Street,
South Bala Bagya Nagar,
Tirunelveli Junction. ... Respondent / Appellant / Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.8 of 2006 on the
file of the I Additional Subordinate Judge, Tirunelveli, dated 27.02.2007
reversing the judgment and decree passed in O.S.No.473 of 2004 on the file
of the II Additional District Munsif Court, Tirunelveli, dated 21.10.2005.
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S.A.(MD)No.620 of 2010
For Appellants : Mr.S.Meenakshi Sundaram
for Mr.T.Selvan
For Respondent : No appearance
JUDGMENT
The defendants in O.S.No.473 of 2004 on the file of the II Additional
District Munsif Court, Tirunelveli are the appellants in this second appeal.
2. The suit was filed for directing the defendants to pay a sum of
Rs.85,462/- with interest at 36% p.a. and in default, order sale of the
schedule property through court and adjust the sale proceeds towards the
decree. The plaintiff prayed for passing a personal decree in the event of
the sale proceeds being insufficient to satisfy the decree. The suit was filed
on the basis that the suit property had been mortgaged by depositing the tile
deeds. The case of the plaintiff was that the mortgage by deposit of the title
deeds took place on 26.05.1995. The plaintiff had advanced a sum of
Rs.80,000/- on the strength of the said equitable mortgage. The loan was
repayable in 20 installments. But only a sum of Rs.24,700/- was paid. The
rest remained unpaid. Thiru.Martin who was given loan passed away on
29.05.1995. The defendants have given an undertaking to discharge the
debt in three years. They did not however do so. The plaintiff therefore
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S.A.(MD)No.620 of 2010
issued notice dated 16.05.2003 calling upon the defendants to settle the
mortgage dues. The defendant sent a reply dated 24.05.2003 repudiating
their liability. In these circumstances, the suit came to be laid on
13.10.2003. The defendants filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed the
necessary issues. On the side of the plaintiffs, three witnesses were
examined. Ex.A1 to Ex.A11 were marked. The defendants 1 & 2 examined
themselves as D.W.1 & D.W.2. Ex.B1 to Ex.B7 were marked. After
considering the evidence on record, the trial court by judgment and decree
dated 21.10.2005 dismissed the suit. Aggrieved by the same, the plaintiff
filed A.S.No.8 of 2006 before the I Additional Sub Court, Tirunelveli. By
the impugned judgment and decree dated 27.02.2007, the first appellate
court reversed the decision of the trial court and directed the defendants to
pay a sum of Rs.95,261/- with interest at 36% per annum from the date of
suit claim till the date of realization. In the event of default, the property
was ordered to be sold so as to satisfy the decree. In other words, the suit
was decreed by the impugned judgment and decree as prayed for.
Aggrieved by the same, the second appeal came to be filed. The second
appeal was admitted on 20.07.2010 on the following substantial questions
of law:-
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S.A.(MD)No.620 of 2010
“(i) Whether the first appellate court had erred in arriving at the
conclusion regarding the execution of A.1, A.2 and A.4 without comparing the
signatures of documents of contemporary period?
(ii) Whether the first appellate court had erred in coming to the
conclusion regarding the signature found in Ex.A1, A.2 and A.4 without getting
expert opinion?
(iii) Whether the first appellate court had erred in coming to the
conclusion regarding creating of equitable mortgage when respondents have not
satisfied legal requirement under Section 58 of T.P.Act?
(iv) Whether the first appellate court is correct in coming to the
conclusion respondent had got legal status to institute suit as per Ex.A9?”
Though the respondent had been served and its name is printed in the cause
list, no counsel had entered appearance. The respondent was therefore set
exparte and the matter was heard on merits.
3. The learned Senior Counsel appearing for the appellants reiterated
all the contentions set out in the memorandum of grounds and called upon
this Court to answer the substantial questions of law in favour of the
appellants and set aside the impugned judgment and decree and restore the
decision of the trial court. Since the respondent had been set exparte and
remained un-represented, I carefully went through the evidence on record
and independently scrutinized the same.
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S.A.(MD)No.620 of 2010
4. As already noted, the case of the respondent is that the defendants
mortgaged the suit property by deposit of the title deeds. There is no
dispute that the suit property belongs to Chellammal and her son
Mariappan. Ex.B1 dated 29.07.1983 is the sale deed executed by one
Joseph Rajbathar in their favour. Of-course, the original document was
marked by the plaintiff as Ex.A8. Ex.B1 is only a certified copy.
5. The specific defence of the defendants is that they had not signed
in Ex.A1 or Ex.A2. P.W.1 had also admitted in the cross-examination that it
was Martin, the husband of the first defendant and father of the second
defendant, who had availed loan from the plaintiff firm. When the
defendants had denied their signatures, the plaintiff must have taken steps
to send the disputed signatures for the opinion of the hand writing expert.
In this case, the plaintiff did not take any such step. It is quite possible that
Thiru.Martin could have handed over Ex.A8 at the time of availing loan
from the plaintiff firm. But then, mere deposit of a title document cannot
create an equitable mortgage. It is the person in whose name the document
stands, who can create the mortgage. In this case, that has not been done.
Therefore, the trial court rightly came to the conclusion that by handing
over the title document belonging to the defendants, Thiru.Martin could
have created an equitable mortgage on the suit property. The first appellate
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S.A.(MD)No.620 of 2010
court failed to come to grips with this reasoning. The first appellate court
chose to compare the signature found in the vakalat and in the written
statement and gave a finding that signatures found in Ex.A1 & Ex.A2 are
that of the defendants. Such an approach has been deprecated in many
decisions. Of-course, under Section 73 of the Indian Evidence Act, the
Court can compare the disputed signature with an admitted signature with
its naked eye. But then, the disputed signature must be compared with the
admitted signature in a contemporaneous document.
6. In the case on hand, the suit was filed only in 2004. Ex.A1 &
Ex.A2 are of the year 1995. Therefore, the approach adopted by the first
appellate Court cannot be said to be correct. That apart, the first appellate
court had misconstrued Section 58(f) of the Transfer of Property Act.
I answer the substantial questions of law in favour of the appellants. The
impugned judgment and decree are set aside. The decision of the trial court
is restored. The second appeal is allowed. No cost. Consequently,
connected miscellaneous petition is closed.
19.04.2022
Internet : Yes/Nop
Index : Yes/No
rmi
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S.A.(MD)No.620 of 2010
To
1.The I Additional Subordinate Judge, Tirunelveli.
2.The II Additional District Munsif Court, Tirunelveli.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.620 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.620 of 2010
19.04.2022
https://www.mhc.tn.gov.in/judis
