Madras High Court
Ghouse Baig vs Mahamuda Begum (Died) on 3 January, 2023
S.A.No.1896 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1896 of 2004
1.Ghouse Baig
2.A.Nazeer Ahmed ...Appellants
Vs.
1.Mahamuda Begum (Died)
2.Fazal Baig
3.Rahima
4.M.Y.Khader Basha
5.M.Y.Nasheer Ahamed
6.M.Y.Ummar
7.M.Y.Jameela
8.M.Y.Yasmeen ...Respondents
1/18
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S.A.No.1896 of 2004
(R4 to R8 brought on record as Lrs of the deceased 1st respondent vide
order dated 30.01.2019 made in C.M.P.No.52 of 2019 in S.A.No.1896
of 2004)
Prayer: Second Appeal is filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree in A.S.No.91 of
2003 on the file of the Principal District Judge, Vellore, dated
24.12.2003 confirming the Judgement and Decree in O.S.No.915 of
2000 dated 14.07.2003 on the file of the Principal District Munsif
Court, Vellore.
For Appellants : Mr.P.Jagadeesan
For Respondent 1: Died
For Respondents : Notice dispensed with.
2&3
For Respondents : Mr.K.Harishankar
4 to 8
JUDGMENT
The 2nd and 3rd defendants in the suit O.S.No.915 of 2000 on the
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S.A.No.1896 of 2004
file of the Principal District Munsif, Vellore, are the appellants before
this Court. The appellants seek to challenge the concurrent
Judgement and Decree against them. The facts which has culminated
in the filing of the Second Appeal is herein below set out and the
parties are referred to in the same rank as before the Trial Court.
2. The plaintiff had filed a suit for permanent injunction
restraining the defendants from interfering with her peaceful
possession and enjoyment of the suit property. The suit property was
a house site with a basement constructed thereon bearing Door No.25
on Military Bazaar Street, Vellore Town, measuring East to West 4 ½
yards, North to South 9 Yards, bounded on the north by the street, on
the south by Karim Sahib's house on the west by Kazim Baig's house
and east by Shaju Sahib's house.
3. It is the case of the plaintiff that the suit property belonged to
one Mohamad Kasim @ Sabjan Sahib and his wife Johara Bibi, who
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S.A.No.1896 of 2004
had sold the same to the plaintiff under a registered sale deed dated
05.02.1968. Kazim in turn had purchased the property from one Syed
Kadar Sahib under a sale deed dated 17.08.1933.
4. It is the case of the plaintiff that from the date of her purchase
she has been in possession of the property by paying property tax.
Originally at the time of the purchase there was a tiled house in the
suit property which had got dilapidated. In and around the year 1996
the plaintiff had removed the same and a fresh basement was put up.
Thereafter, owing to certain financial constraints, the plaintiff was not
able to proceed further with the construction. Just prior to the filing of
the suit, the plaintiff had resumed the construction at which point in
time, the defendants had started obstructing her work. Therefore, left
with no other alternative, the plaintiff had come forward with the suit.
5. The 2nd and 3rd defendants had filed a written statement inter
alia contending that the sale in favour of the plaintiff was a sham and
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S.A.No.1896 of 2004
nominal one. It is the case of these defendants that after the purchase
of the property by Kasim from Syed Kadar Sahib on 17.08.1933, he
had executed a usufructuary mortgage deed in favour of Fathima Bibi
Ammal and Essac Sahib under a registered mortgage deed dated
19.08.1937. Thereafter, on 17.03.1941, the said Fathima Bibi had
released her rights in the mortgage in favour of her son Essac Sahib.
The said Essac Sahib died leaving the properties in the hands of his
maternal uncle's son Karim Beig, who was the only legal heir living at
that time.
6. It is further case of the defendants that Karim Beig was
already the owner of Door Nos.24 and 26. Since Kasim Sahib had not
redeemed the mortgage within stipulated time, he had orally sold the
property to Karim Beig under a settlement deed dated 15.07.1946.
Karim Beig had thereafter settled the property in favour of his son
Ghouse Beig, the 2nd defendant in the suit. At the time of the
settlement, Ghouse Beig was a minor and possession was taken on his
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S.A.No.1896 of 2004
behalf by his mother Amidha Bi.
7. The defendants would submit that the sale in favour of the
plaintiff, who is none else than the daughter in law of Mohammed
Kasim and Johara Bibi, during the subsistence of the mortgage was
invalid and that apart the plaintiff has never been in possession of the
property. The tax receipts which have been produced are all created
for the purpose of the case since the suit property is a vacant site. On
31.05.2000, the 2nd defendant had sold the property to the 3rd
defendant, who is now in possession and enjoyment of the property.
They therefore prayed that the suit may be dismissed.
8. The learned Principal District Munsif, Vellore had framed the
following issues:
i. Whether the plaintiff is entitled for permanent injunction?
ii. To what other relief the plaintiff is entitled to?
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S.A.No.1896 of 2004
9. The plaintiff had examined herself as P.W.1. Ex.A.1 to
Ex.A.10 were marked on the side of the plaintiff. On the side of the
defendants, the 2nd defendant had examined himself as D.W.1 and
Ex.B.1 to Ex.B.4 were marked on the side of the defendants. The 3 rd
defendant had not entered the box to adduce evidence.
10. The defendants 1 and 4 had not filed a written statement and
remained an ex parte.
11. The learned Principal District Munsif, Vellore has held that
the 2nd defendant had not let in any evidence to prove that he is the
legal heir of Essac Sahib and as to how Karim Beig had come into
possession of the suit property. Further, there was no documents to
show the possession by the defendants. In fact, the 2 nd defendant as
D.W.1 has admitted that there is a basement which has not been put
up either by himself or by the 3rd defendant. D.W.1 would further
depose that Essac Sahib had a son which admission he had
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S.A.No.1896 of 2004
immediately retracted.
12. The learned Principal District Munsif, Vellore further held
that since the defendants had not been able to show proof that Karim
Beig was the legal heir of Essac Sahib. the settlement in favour of the
2nd defendant and subsequent sale in favour of the 3rd defendant is not
valid.
13. The Trial Court had considered the documents filed on the
side of the plaintiff to show her possession and enjoyment of the
property and ultimately decreed the suit. Aggrieved by the said
Judgement, the 2nd and 3rd defendants had filed A.S.No.91 of 2003 on
the file of the Principal District Court, Vellore. By her Judgement and
Decree dated 24.12.2003, the learned Principal District Judge, Vellore
was pleased to dismiss the appeal and confirm the Judgement and
Decree of the Trial Court.
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S.A.No.1896 of 2004
14. Aggrieved by the said Judgement, the defendants 2 and 3 are
before this Court.
15. The above Second Appeal has been admitted on the
following Substantial Questions of Law:
“1. Whether or not the plaintiff's vendor lost his
title to the suit property as per Section 27 of the
Limitation Act, as he failed to redeem the usufructuory
mortgage (Ex.B.1) within the period of limitation?
2. Whether the suit for bare injunction without a
prayer for declaration of title to the suit property is valid
in law, especially when the plaintiff's title was seriously
disputed by the defendants?
3. Having regard to the fact that the suit property
had been dealt with by the second defendant and his
parents, whether the plaintiff is entitled to a decree for
permanent injunction as prayed for by her?
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S.A.No.1896 of 2004
16. The argument of the learned counsel appearing for the
defendants 2 and 3 / appellants was that the mortgage had to be
redeemed within a period of 30 years and since the right to redeem
had been extinguished the suit filed was not maintainable as the
plaintiff claims right under the mortgagor. The learned counsel would
rely upon the Judgement reported in 2006 (4) SCC 484 –
Prabhakaran and others Vs. M.Azhagiri Pillai (Dead) and others, in
support of his contention. The learned counsel would rely upon
paragraph no.13 of the said Judgement to buttress his argument that
the right to redeem would arise immediately in the case of usufructory
mortgage which does not fix any date for repayment. He would
therefore contend that the mortgage had been executed as early as in
the year 1937 and there is no proof to show that the same has been
redeemed. Consequently, the suit had to be dismissed.
17. The learned counsel would further contend that the suit for
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S.A.No.1896 of 2004
bare injunction without a prayer for declaration was also not valid and
would squarely come within the contours of the Judgement of the
Hon'ble Supreme Court reported in 2008 (4) SCC 594 – Anathula
Sudhakar Vs. P.Buchi Reddy (Dead) and others.
18. The learned counsel would also submit that the suit property
is a vacant site and since the mortgage had not been redeemed, the 2 nd
defendant as a son of the legal heir of the Essac Sahib was in
possession and therefore, the plaintiff was not entitled to a decree for
injunction.
19. Per contra, Mr.Harishankar, learned counsel appearing on
behalf of the plaintiff at the outset would submit that the Judgement
reported in 2006 (4) SCC 484 – Prabhakaran and others Vs.
M.Azhagiri Pillai (Dead) and others cited supra has been overruled.
By the Judgement reported in 2014 (9) SCC 185 – Singh Ram Vs.
Sheo Ram and others. Therefore, the contention that the right to
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S.A.No.1896 of 2004
redeem had extinguished cannot be sustained since the right to seek
redemption of the mortgage in the instant case, opened after two years
from the date of the mortgage deed and the deed does not specify any
time limit for redemption. That apart, the learned counsel would
submit that the defendants have not been able to produce the original
mortgage deed and it was the plaintiff who had produced the
registered copy of the usufructory mortgage deed.
20. The learned counsel would submit that the defendants have
not been able to establish the fact that Karim Beig was the legal heir
of Essac Sahib. Further, D.W.1 in his cross examination has stated
that Essac Sahib had a son. Though he had retracted the said
statement, however, an admission to this effect having been made, the
contention of the defendants that Karim Beig was the sole legal heir of
Essac Sahib automatically fails and consequently the settlement in
favour of the 2nd defendant and sale in favour of the 3rd defendant has
to necessarily be held as invalid. The plaintiff has proved her
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S.A.No.1896 of 2004
possession of the suit property by filing Ex.A.3 to Ex.A.6 and Ex.A.8.
The learned counsel would therefore submit that the appeal has to be
dismissed and the Judgement and Decree of the Courts below be
sustained.
21. Heard the learned counsels and perused the records.
22. A perusal of Ex.B.1 would show that the usufructory
mortgage had been created by Kasim in favour of Fathima Bibi and
her son Essac Sahib. The deed in question would state that the
mortgagors are put in possession of the property and the rents would
be adjusted towards interest payable by the mortgagor to the
mortgagee. The deed would further state that the right to redeem
commences after two years from the date of the mortgage. However,
the deed does not give any time limit for exercising the right of
redemption.
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S.A.No.1896 of 2004
23. In the Judgement reported in 2014 (9) SCC 185 – Singh
Ram Vs. Sheo Ram and others, the Hon'ble Supreme Court was
reconciling the Judgements in 2006 (4) SCC 484 – Prabhakaran and
others Vs. M.Azhagiri Pillai (Dead) and others, 1985 (4) SCC 162 –
Jayasingh Dnyanu Mhoprekar Vs. Krishna Babaji Patil and the full
bench Judgement of the Punjab and Haryana High Court in AIR 2008
P&H 77 – Ram Kishan Vs. Sheo Ram.
24. After discussing the provisions of Section 58, 60 & 62 of the
Transfer of Property Act, Article 61 of the Limitation Act and the
Judgements cited supra, the Hon'ble Supreme Court has held as
follows:
“22.We, thus, hold that special right of usufructuary
mortgagor under Section 62 of the T.P. 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
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S.A.No.1896 of 2004
for purposes of Article 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.
23. On this conclusion, the view taken by the Punjab
and Haryana High Court will stand affirmed and contrary
view taken by the Himachal Pradesh High Court in
Bhandaru Ram vs. Sukh Ram will stand over-ruled. The
appeals are dismissed.”
Therefore, from the above, it is clear that the right to redeem the
mortgage has not been extinguished.
25. That apart, the 2nd defendant seeks to claim title to the
property on the premise that he is the legal representative of the
original mortgagee Essac Sahib. However, there is no document to
prove the same. That apart, during his own deposition, he has
admitted the fact that Essac Sahib had a son. Therefore, the
Substantial Question of Law no.1 is answered against the defendants.
The defendants have not been able to file any proof to show
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possession of the property. However, the plaintiff has filed documents
to show possession of the property in the form of Ex.A.3 to Ex.A.8.
26. The suit is one for bare injunction and the person who is
questioning the title is a third party to the property. Therefore, the
Substantial Question of Law nos.2 and 3 are also answered against the
defendants.
27. In the result, the Second Appeal is dismissed. No costs.
03.01.2023
Index : Yes/No
Internet : Yes/No
kan
To
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S.A.No.1896 of 2004
1.The Principal District Judge,
Vellore.
2.The Principal District Munsif Court,
Vellore.
P.T. ASHA, J,
kan
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S.A.No.1896 of 2004
03.01.2023
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