IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:1.9.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.1172 OF 1994 K.Shanmugam ... Appellant/ 2nd Defendant vs. 1.Dhanalakshmi Ammal(died) 2.K.Venkatesan ... Respondent/Plaintiff/ 3.Rajavelu Naicker Respondents/Defendants 1 & 3 4.Muruganantham 5.Palani RR4 and R5 are brought on record as LRs of the deceased first respondents as per order of Court dated 15.4.2004 made in C.M.P.Nos.4580 & 4581 of 91 Appeal preferred against the judgment and decree dated 18.3.1994 passed in O.S.No.193 of 1989 by the Subordinate Judge, Tiruvannamalai. For Appellant : Mr.V.Raghavachari For Respondents : No appearance JUDGMENT This appeal is focussed as against the judgment and decree dated 18.3.1994 passed in O.S.No.193 of 1989 by the Subordinate Judge, Tiruvannamalai. For convenience sake, the parties are referred to here under as per their ligitagive status before the trial Court. 2. Tersely and briefly, succinctly and precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: (a) The property described in the schedule of the plaint and the other portions attached to it, originally belonged to the joint family comprised of deceased Kadhirvelu Pillai and his two sons, namely, D1 and D2. In the partition deed dated 30.4.1958, which emerged among them, the suit property was allotted to the share of Kadhirvelu Pillai for discharging the family debts. (b) For the purpose of discharging the mortgage decree debt payable by Kadhirvelu Pillai in favour of his brother V.V.S.Rajamanickam Pillai https://hcservices.ecourts.gov.in/hcservices/ and also the dues payable under a debt to Padmavathiammal, wife of Ramamurthy Chettiar and other debts, Kathirvelu Pillai borrowed a sum of Rs.15,000/- from the plaintiff on 20.12.1977 and executed a simple mortgage deed, mortgaging the property described in the schedule of the plaint. (c) Subsequently Kadhirvelu Pillai did not discharge the mortgage debt. During his life time, he executed a registered 'Will' on 22.12.1981 in favour of D2 and the sons of the first defendant and also the plaintiff. Kadhirvelu Pillai died on 24.2.1982, whereupon the 'Will' came into effect. (d) D1 alienated a portion of the mortgaged property in favour of D3, whereupon D3 come into possession of a portion of it. As such, the defendants 1 to 3 are bound to discharge the dues and other mortgage debts. Despite notice issued to the defendants by the plaintiff there was no response. Hence the suit. 3. Per contra remonstrating and refuting, challenging and contradicting the averments/allegations in the plaint, D2 filed the written statement, the gist and kernal of them would run thus:- The said Kadhirvelu Pillai did not execute any simple mortgage deed in favour of the plaintiff and he did not borrow any money much less the sum of Rs.15,000/- from the plaintiff. There is one other litigation in O.S.No.29 of 1990 pending on the file of the District Munsif Court, Coimbatore, between the Plaintiff and D2 herein and in that, the 'Will' of the father is under dispute. Kadhirvelu Pillai had no necessity to mortgage the suit property and he had no right to execute the Will in respect of the properties belonged to the defendants' mother, and that too when she was alive and that he had also enough money to discharge the debts. Accordingly, D2 prayed for the dismissal of the suit: 4. D3 filed the written statement, the warp and woof of it would run thus: The plaintiff was the kept mistress of Kadhirvelu Pillai. The plaintiff purchased property from Kadhirvelu Pillai and thereby the plaintiff's alleged mortgage got satisfied. The remaining properties of Kadhirvelu Pillai were partitioned among Kadhirvelu Pillai and his two sons and out of which, the 1/3rd share of Kadhirvelu Pillai's eldest son, was sold by him in favour of the 3rd defendant as per the sale deed dated 11.3.1987. Kadhirvelu Pillai, as per his registered 'Will' dated 22.12.1981 bequeathed his 1/3rd share in the suit property in favour of his son Shanmugam(D2) and as such, D2 became the owner of 2/3rd share in the suit property. There is an Exchange Deed dated 18.5.1987, whereby D2-Shanmugam exchanged his share with the share of D3. Consequently, D3 became entitled to 500 Sq.feet in the suit property. https://hcservices.ecourts.gov.in/hcservices/ 5. The trial Court framed the relevant issued. During trial the plaintiff examined herself as P.W.1 and Exs.P1 to P10 were marked. On the side of the defendants the second defendants examined himself as D.W.1 and Ex.D1 and D2 were marked. 6. Ultimately, the trial Court passed the preliminary decree directing D2 to discharge the mortgage debt to the extent of 1000 Sq.feet in the suit property and D3 to discharge the mortgage debt to the extent of 500 Sq.ft. 7. Being dissatisfied with and aggrieved by the judgment and preliminary decree passed by the trial Court, D2 preferred this appeal on the following grounds among others: (a) The judgment and preliminary decree of the trial Court are against law, weight of evidence and all probabilities of the case; (b) the trial Court should have seen that the mortgage created by Kadhirvelu Pillai could bind only the mortgaged property that is available in the hands of his legal representatives and not the individual share of his legal representative and accordingly to the extent of 500 sq.ft, which D2 obtained as per the 'Will' of Kadhirvelu Pillai in the mortgaged property alone he could be fastened with liability, to discharge the mortgage debt. (c) The trial Court also failed to take into consideration the fact that the Sub Court, Tiruvannamalai, in one other suit in O.S.98/67 exonerated the appellant/D2 from liability on the ground that he is entitled to the protection under the Act 14/38 and accordingly, the Execution Petition was dismissed as against the appellant/D2 and his share was deleted from the Execution proceedings. 8. Heard the learned counsel for the appellant/D2. Counsel for the respondents remained absent. 9. The learned counsel for D2 would advance his argument that consequent upon the purchase of mortgaged property by the mortgagee herself, she ceased to have the power to enforce the mortgage, and in any event, D2 could be mulcted with liability only to the extent of 500 sq.ft., in the mortgaged property, which he got from the original mortgagor under the 'Will' executed by him. 10. Taking into consideration the grounds of appeal and the argument submitted by the learned counsel for D2, the following points emerged for consideration: (i) Whether the appellant/D2 adduced any evidence to prove that https://hcservices.ecourts.gov.in/hcservices/ the mortgagee, namely, the plaintiff, purchased either the entire mortgaged property or a part of it and to what extent? or whether there is any sufficient evidence to prove that the plaintiff/mortgagee purchased so? (ii) Whether the trial Court was justified in taking into consideration the 'Will' executed by the mortgagor-Kadhirvelu Pillai, subsequent to the creation of the suit mortgage? and if so, whether D2 can be mulcted with the liability to bear responsibility in discharging the mortgage only to the extent of 500 sq.ft, which he got under the 'Will' executed by the mortgagor in his favour?. (iii) Whether there is any infirmity in the judgment and decree of the trial Court. 11. To say the least, the lower Court allowed itself to get obfuscated and perplexed, bewildered and nonplused by the whole kit and caboodle of the facts and figures placed before it. There are factual complications in this case, wherefore it is just and necessary to detail and delineate the facts thus: 12. Indubitably and incontrovertibly the original mortgagor- Kadhirvelu Pillai and his two sons, namely, D1 and D2 herein entered into a partition Deed-Ex.A1 dated 30.4.1958, whereby the properties described in the 'A' schedule therein were allotted to Kadhirvelu Pillai for discharging the family debts. For the purpose of discharging the family debts, kadhirvelu Pillai borrowed a loan of Rs.15,000/- from the plaintiff-Dhanalakshmi Ammal and in consideration of the same executed Ex.A2-the mortgage Deed dated 20.12.1977, mortgaging the following property. brhj;Jtpguk; jp/kiy/hp/o c& rg;/o/ / jpUtz;zhkiy lt[d;. 1tJ thh;L 25 tJ gpshf;. bghpa bjUtpy;. tPjpf;F(bj) td;dpaklj;jpw;F (nk) ntjghlrhiyf;F (t) ,ul;ilgps;isahh; nfhtpy; bjUt[f;F (fp) bghpabjUgf;fk; fpHf;F nkw;F $hjpao 48 gpd;g[wk; njhl;lj;Jgf;fk; fp/nk/$hjpao 89\ tlf;F bjw;F nky;g[uk; $hjpao 156 fPH;g[uk;. t/bj/ $hjpao 153 ,jw;f;F gpshf; be/27 T.S.No.1583 f;F rJuo 8585 c& rf;Fge;jpf;Fs;/ nky;g[uk; rh;nt be/ T.S.1538-2 gpshf; be/25 rJuo 659/ ,e;jrh;nt bek;gh;fspy; fl;oapUf;Fk;. rfy fl;ol rhkhd;fs; ml';fpa jhh;R fl;olk;. jl;nlhLfl;olk;. njhl;lj;jpy; nrh;e;J fpzh; 1k; mokida[ld;. Kdprpgy; nlhh; be/2 cs;s tPL 1y; ehd; fPH;g[uk; epUj;jpf; bfhz;oUf;Fk; mokida[ld; tPL epw;f nky;g[uk; fp/nk/$hjpao 24 njhl;lj;Jgf;fk; gpd;g[uk; fp/nk/$hjpao 28\ t/bj/$hjpao 130 3-4 ,jpy; Rkhh; 420 rJuo kz;Rth;/ kz; g{r;rhyhfpa jhh;R jl;nlhL 60 tUlj;jpa fl;lok; cl;glt[k;/ ,jw;F bjd;g[uk; 2tJ jhf;F fp/nk/$hjpao 28\ t/bj/ $hjpao 10 k; fpzw; 1 cs;gl fhyp,lj;jpy;. c& fpzwpy; $yk; vLj;J g[H';ft[k;. fpzwpy;nky;g[uk; cs;s fhyp kidapy; https://hcservices.ecourts.gov.in/hcservices/ ,ul;il gps;isahh; nfhtpy; bjUtpy; ,Ue;J tz;o/ fhy; eilfs;. kdpjh;fs; nghf tu ghj;jpak; cs;glt[k;. c& brhj;jpd; jw;fhykjpg;g[ U/30000/00/@ The aforesaid mortgaged property is found described as item No.1 in the 'A' Schedule appended to Ex.A1-the Partition Deed and it is extracted here under for ready reference. @bc&l;oa{y; FLk;gj;jpd; fld;fis igry; bra;a fjph;ntYgps;is ghfj;jpw;f;F itj;j brhj;Jf;fs; 1/ eh Mo jpUtz;zhkiy jhYf;fh jpUtz;zhiy rg;/o/ jpUtz;zhkiy lt[d; bghpa bjUtpy; 1tJ thh;L 27tJ gpshf; rh;nt bek;gh; 1583 rJu mo 8585 ,jd; nky;g[uk; rJu mo 3450 rh;nt bek;gh; 1538-2 rJumo 659 uh$khzpf;fgps;is fl;llj;jpw;F nkw;F bul;ilgps;isahh; nfhtpy; bjUt[f;F fpHf;F bghpa bjUt[f;F bjw;F rh!;jpughlrhiy fl;olj;jpw;F tlf;F ,jd; kj;jpapy; Kdprpgy; nlhh; bek;gh; 3 nghl;ljl;nlhL jhh;!; bkj;ij fl;llk; mokid nky; rhah cs;glt[k; Rkhh; kjpg;g[ U/5000/00@ The mere comparison of the aforesaid two description of properties would demonstrate that in S.No.1583, an extent of 8585 sq.ft. is contemplated and in that on the Western portion, an extent of 3450 sq.ft in Survey No.1538/2 is contemplated and in which an extent 659 sq.ft of plot area is found set out, wherein a building is contemplated. In the description of property, as found set out in the Mortgage Deed, the aforesaid first item in the 'A' schedule of the Partition Deed, is found described with slight modifications. However, there is absolutely no controversy that the mortgaged property is the one which forms part of the first item of the ‘A’ Schedule property in Ex.B1, which was set apart to discharge the family debt by Kadhirvelu Pillari. D2 also has not disputed that the mortgaged property is not the first item of the ‘A’ Schedule property in Ex.B2. 13. It is therefore crystal clear that as per the authorization, which Kadhirvelu Pillai had got it from D1 and D2, he validly created mortgage as per Ex.A2. Once a validly executed mortgage is available, the Court, in the suit which was filed by the mortgagee for bringing the mortgaged property for sale, cannot go into the facts as to what happened subsequently among the mortgagor and his sons and others. I am at a loss to understand as to how the lower Court could allow itself to be assailed by the recitals in Ex.B5-Will and also the sale effected by D1 in favour of D3 as per sale deed dated 11.3.1987. Not to put too fine a point on it, the Court, in such mortgage suit, is expected to pass preliminary decree and final decree only based on the mortgage deed. The matter would be entirely different if the very mortgage created itself has been challenged as to the validity. 14. Here, even though the appellant/D2 raised various pleas, and tried to attack the mortgage, he has not adduced any convincing evidence that Kadhirvelu Pillai himself had no right to create such a mortgage. In fact, D2 in his written statement went to the extent of taking up the https://hcservices.ecourts.gov.in/hcservices/ plea that by selling the other items of immovable properties under the ‘A’ schedule, Kadhirvelu Pillai could have very well discharged the debts and that he had no necessity to create this mortgage. A fortiori this is a point which cannot be agitated in a suit filed for bringing the mortgaged property for sale. The inter se dispute between Kadhirvelu Pillai and his sons, cannot be allowed to be pleaded and proved in the suit, based on mortgage. 15. The contention of D2 that as per Ex.B2-the certified copy of the order passed in REP.No.83/78 his share in item No.1, referred to in the mortgage in favour of Rajamanickam Pillai, was deleted would in no way enure to the benefit of D2 for the reason that the earlier suit 98/67 was instituted by Rajamanickam Pillai for bringing a mortgaged property for sale and subsequently, he filed REP.No.83/78 under Order 21 Rule 22 and 66 C.P.C. for the sale of the hypotheca and in that connection alone the said order dated 24.4.1979 emerged; paragraphs 7 & 8 of Ex.B2 are extracted here under for ready reference. "7. The petitioner herein has produced Exhibits A-1 to A-8 extract from the property tax demand register relating to door Nos.22, 20, 23 and 2, 3 and 104 which would go to show that from the years 1970-71 to 1971-72 for 4 half years and from 1975-76 to 1977-78, the respondent has been assessed to property tax for the properties whose annual rental value is more than Rs.1800/-. As such it is evident, that the 1st respondent is not a debtor within the meaning of Section 2(III) (iii) of the Act 40/78 and Section 3(c) of the Act IV of 1938. So far as the respondents 2 to 4 are concerned, the petitioner has alleged that they are profession tax assessees respondents 2 to 4 remained absent and they have not contested. So far as the 5th respondent is concerned, though the petitioner has alleged that the 5th respondent is an income tax assessee which is denied by the 5th respondent, the petitioner had not let in any evidence to show that the 5th respondent is an income tax assessee. The learned counsel for the petitioner represented that the 5th respondent had been allotted certain other properties in the family partition and that he is not proceeding against the 5th respondent, in the instant case. Anyway, there is nothing to establish that the 5th respondent is an income tax assessee. So far as the contention of the 6th respondent is concerned, the decree itself would clearly recite that the items mortgaged should be brought for sale as the last item. 8. In the result, the objections of the 5th respondent and 6th respondent are uphelp. Objections raised by the 1st respondent are over-ruled. The petition is dismissed as against the 5th respondent and his share in item No.1. The petitioner to bring the properties mortgaged to the 6th respondent i.e. 1/3 share in item 2 after exhausting his https://hcservices.ecourts.gov.in/hcservices/ remedies available against the other items. No costs." From the above excerpts it is clear that the counsel for Rajamanickam Pillai in that case represented that the 5th respondent therein, who is D2/appellant herein had been allotted certain other properties in the family partition and that therefore, he was not proceeding against the 5th respondent in the instant case. 16. It appears that under the provisions of Act 40/78 and Section 3 (c) of Act IV of 1938 exemption was sought for and the same was granted. It is quite obvious that such an order would in no way enure to the benefit of the D2 as against the plaintiff herein so as to prevent her from proceeding as against the first item of the property mentioned in ‘A’ Schedule of Ex.A2, as the privity of contract was only between Kadhirvelu Pillai and the plaintiff herein and as has been already highlighted supra, the mortgage was validly created in favour of the plaintiff. 17. In fact, in the written statement filed by the appellant/D2, the following could be extracted: "4. This defendant submits that the present suit filed by the plaintiff is not maintainable for one obvious reason. In the registered partition deed between this defendant, his brother and father, the A schedule properties were set apart for discharging the then existing debts and not for future debts to be incurred by the father kadirvelu Pillai. Of course, there was a provision in the partition deed itself that the A schedule properties might be sold or encumbered for discharging the then existing debts and a list of existing debts were also mentioned in the registered partition deed itself. Therefore, this defendant as well as the other parties to the partition deed are bound by the terms of the partition deed."(emphasis supplied) 18. It is therefore clear from his own admission in the written statement that D2 cannot challenge the validity of the mortgage created by Kadhirvelu Pillai in favour of the plaintiff. To the risk of repetition without being tautalogous, I would state that the allegations of D2 as against his father Kadhirvelu Pillai that he had not acted prudently or honestly in letter and spirit adhering to the partition deed, is non issue so far this case of the plaintiff is concerned and no more elaboration in this regard is required. 19. D2 himself in his written statement would clearly aver that Ex.B5-the Will had nothing to do with this mortgage. However, as an after thought, he would, in his additional written statement, aver as though D1 and D2 would be liable only to an extent of 2/3rd of the principal amount with proportionate interest thereon. https://hcservices.ecourts.gov.in/hcservices/ 20. My above discussion would exemplify and evidence that the sons of Kadhirvelu Pillai-the original mortgagor, cannot place reliance on the subsequent Will executed by Kadhirvelu Pillai relating to the mortgaged property and those facts cannot be taken as a stumbling block in enforcing the mortgage deed by the mortgagee. 21. The learned counsel for the appellant/D2 by placing reliance on the Honourable Apex Court decision reported in (2008)5 Supreme Court Cases 124 – M.R.SATWAJI RAO(DEAD) BY L.RS VS. B.SHAMA RAO (DEAD) BY LRS AND OTHERS would develop his argument that since the plaintiff being the mortgagee, purchased a part of the mortgaged property, the entire mortgage has become unenforceable and certain excerpts from the said decision would run thus: “Held: A perusal of all the details referred to herein leads to an irresistible conclusion that the decree in favour of the mortgagee in O.S.120/51-52 was not an independent money decree against the respondents but merely for satisfaction of the rents accrued on the mortgaged property, leased back to the respondents on 19.22.1948 itself up to 12.12.1948 and thereafter which was secured by a second mortgage deed dated 12.12.1948 executed by the respondents in favour of the appellants. Order 34 Rule 14 CPC prohibits the mortgagee to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. Admittedly, the said suit by the mortgagee was not in terms of Rule 14 of Order 34. Therefore, bringing the mortgaged property to sale by the appellants in execution of the decree passed in O.S.No.120/51- 52 and purchasing the same by the appellants in public auction is clearly barred under Order 34 Rule 14 CPC. Illustration © to Section 90 of the Trusts Act is applicable to the case on hand. The purchase by the mortgagee in the circumstances of the case amounts to a mere trust and either himself or his legal representatives cannot be allowed to exploit the adversity of the appellants.(emphasis supplied) 22. The aforesaid decision, in my opinion, has been cited out of context. In the matter before the Honourable Apex Court the facts involved are to the effect that the usufructuary mortgagee, instead of occupying the mortgaged property, leased it out, whereupon there were arrears of rent and the suit was filed to recover the arrears and accordingly money decree was obtained and by way of enforcing the money decree, the mortgaged property was brought for sale and that she also purchased it. In such circumstance, under that set of facts, the Honourable Apex Court rendered the said judgment. 23. It is therefore crystal clear from the above discussion that https://hcservices.ecourts.gov.in/hcservices/ the suit here is entirely on a different footing, as the mortgagee properly instituted the suit to enforce the mortgage. The contention of contesting defendants were to the effect that part of the mortgaged property was purchased by the mortgagee. But the mortgagee denied it. The learned counsel for D2 would argue that during cross-examination P.W.1-the plaintiff in her deposition admitted the purchase of part of the mortgaged property. But at once such a clear admission on her part cannot be inferred from her deposition. However there is no specification as to which part of the mortgaged property was purchased. Whereas, the defendants, who have come forward with the specific plea that part of the mortgaged property was purchased by the plaintiff had not chosen to produce any certified copy of the sale deed executed by Kadhirvelu Pillai in favour of the mortgagee. The onus of proof is on the defendants to prove the same. No doubt, admission of facts could be relied on provided, that admission is a clear one. 24. It is therefore evident that the P.W.1’s deposition is not to the effect that part of the mortgaged property itself was purchased by her, but she would state some other portion of mortgaged property was sold to her and that is a subject matter of a separate suit, an excerpt from it would run thus: @mlkhd brhj;jpd; kw;bwhU gFjp vdf;F fpiuak; bfhLj;Js;shh;fs;/ mJ mlkhd gl;lh nghltpy;iy/ mJ Fwpj;J xU jhth cs;sJ@. 25. Be that as it may. Here the plaintiff did not candidly and categorically admit that she purchased part of the mortgaged property itself. Had really the plaintiff purchased a part of the mortgaged property, then it is not known as to why D2 should feel aggrieved by it when the plaintiff brings the entire mortgaged property for sale. Why D2 should try to protect the plaintiff. I make it clear that only mortgaged property is going to be sold and not any other personal property of D2; in any event Section 50 of the C.P.C. would protect D2 if D2 is proceeded against personally other than the mortgaged property. 26. It is therefore crystal clear that the lower Court misdirected itself in taking into account Ex.B5-Will executed by the mortgagor and also the subsequent Sale deed executed by D1 in favour D3 and also about their inter se claim relating to the mortgaged property. The lower Court was expected to simply look into the mortgage deed and its validity and on coming to the conclusion about the due execution of the mortgage deed, the lower Court au fait with law and au courante with facts should have simply passed the preliminary decree, but it failed to do so. Accordingly these points are decided and the appeal is partly allowed. 27. In the result, the preliminary decree of the trial Court is modified as under:- the plaintiff is entitled to enforce the mortgage by way of https://hcservices.ecourts.gov.in/hcservices/ bringing the mortgaged property for sale so as to recover the mortgage amount. Since the original mortgagor himself died, only the mortgaged property shall be proceeded against citing the defendants as parties and I make it clear that as per law when mortgaged property is not sufficient to satisfy the debt then only the personal liability of the legal representative would arise, subject to Section 50 of C.P.C. 28. This appeal is ordered accordingly. However, there is no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Msk To 1. The Subordinate Judge, Tiruvannamalai. 2. The Record Keeper, V.R.Section, High Court, Madras. 1 cc to Mr.V.Raghavachari, Advocate, Sr.No.49387 Judgment in A.S.No.1172 of 1994 KA(CO) EM/21.11. https://hcservices.ecourts.gov.in/hcservices/