IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 SA.No. 594 of 1998(D) ------------------------------- AS.175/1992 of ADDL. DISTRICT COURT-I, MAVELIKKARA OS.260/1990 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANT/1ST RESPONDENT/PLAINTIFF: ---------------------------------------------------------------- NARAYANI JANAKI, PUTHENKANDATHIL VEEDU, MALAMEL BHAGOM MURI, KEERIKKAD VILLAGE. BY ADV. SRI.A.K.ALEX RESPONDENTS/APPELLANT/DEFENDANTS: ---------------------------------------------------------------- 1. P.K. RAGHAVAN, KANNATHARAYIL KIZHAKKETHIL, MALAMMEL BHAGOM MURI, KEERIKKAD VILLAGE. *2. AMMAKUNJU NARAYANI, PUTHANKANDATHIL VEEDU, MALAMMAL BHAGOM MURI, KEERIKKAD VILLAGE. *(DIED) *SUPPLEMENTAL RESPONDENTS 3 & 4 IMPLEADED 3. DIVAKARAN, PUTHENKANDATHIL VEEDU, MALAMALBHAGOM, KEERIKKADU VILLAGE, KAREELKULANGARA. 4. SARASAMMA, VADAKKEPARAMBIL VEEDU, THOTTAPPALLI P.O., ALAPPUZHA DISTRICT * LEGAL REPRESENTATIVES OF THE DECEASED R2 ARE IMPLEADED AS SUPPLEMENTAL R3 & R4 AND R1 IS ALSO RECORDED AS THE L.R. OF THE DECEASED R2 AS PER ORDER DATED 18/05/2005 ON C.M.P.2117/1998. BY ADV. SRI.SIBY MATHEW, SRI.WILSON URMESE, SRI.P.S.KRISHNA PILLAI. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs SA.No. 594 of 1998(D) ORDER ON C.M.P. NO.1622/1998 IN S.A. NO.594/1998 DISMISSED 09/03/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 594 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March, 2011. JUDGMENT The plaintiff, who was non-suited by the lower appellate court is the appellant before this court. On th basis of Ext.A1, the alleged mortgage deed, the plaintiff laid the suit for declaration and injunction. 2. The defendants resisted the suit by contending that Ext.A1 does not reflect as a mortgage and it was a security for the streedhanam amount promised to be given at the time of the marriage of the first defendant. On the above pleadings, issues were raised by the trial court. It appears that the plaintiff produced Exts.A1 and A2 and defendants had examined D.W.1. The trial court on an appreciation of the evidence found that Ext.A1 is a mortgage and holding that since the period of redemption has elapsed, the plaintiff is entitled to the relief of permanent prohibitory injunction. However the relief S.A.594/1998. 2 seeking declaration was denied. That made the defendants to take up the matter in appeal as A.S.175 of 1992 before the Additional District court, Mavelikkara. Before the lower appellate court, it appears that the defendants had produced Exts.B1 to B5. The lower appellate court on an evaluation of the documents produced by the appellant at the appellate stage had come to the conclusion that Ext.A1 could not be treated as a mortgage, nor did the plaintiff could be in possession thereof as a mortgagee. It was found by the lower appellate court that Ext.B1, which is a gift deed, deals with the property covered by Ext.A1 and the plaintiff had accepted Ext.B1. On the above basis, the appeal was allowed and the suit was dismissed. 3. Notice is seen issued on the following questions of law: “i) Is it proper and legal or the court to ignore Ext.A1and decide on the basis of Ext.B1 especially when Ext.B1 is an invalid document executed by an incompetent person. S.A.594/1998. 3 ii) Is it proper for a court to ignore Article 61 of the Limitation Act and give weight to an invalid document? iii) Whether it is legal to hold possession on the basis of an invalid document in a case where valid document shows otherwise and when there are specific recitals showing possession? iv) Whether it is proper and legal for the court to ignore Ext.A1 mortgage which is not redeemed and hold possession on the basis of an invalid document? v) Is it proper for a court to give much weight on Exts.B2 to B5 and found possession ignoring Ext.A1?” 4. Learned counsel appearing for the appellant very vehemently argued that the plaintiff did not get an opportunity to object to the documents produced by the defendants before the lower appellate court and she has been deprived of the opportunity to show that those documents are not binding on him. It was also contended that Ext.A1 is a mortgage, pure and simple, and the lower S.A.594/1998. 4 appellate court was not justified in holding otherwise. The lower appellate court, according to learned counsel, has erred both on facts and in law in dismissing the suit. 5. Learned counsel appearing for the respondents on the other hand pointed out that in the objection filed by the plaintiff to the application to receive the documents, she had admitted the validity and genuineness of the gift deed Ext.B1 and that should decide her fate. After having accepted Ext.B1, it comes with little grace from the plaintiff now to say that Ext.A1 is a mortgage deed. It is contended that there are no grounds made out to interfere with the judgment and decree of the court below. 6. After hearing both sides, it is felt that the stand taken by the respondents has considerable force and substance. On a reading of Ext.A1, it does not appear as a mortgage at all, but is more in the nature of a security for the amount promised to be paid to the first defendant at the time of her marriage. One fails to understand the finding of the trial court that Ext.A1 is a mortgage and since S.A.594/1998. 5 the period of redemption has elapsed, the plaintiff has perfected her title. Whatever that be, the lower appellate court has set things right. Before the lower appellate court, the appellant did produce Exts.B1 to B5. 7. The contention now taken by the plaintiff is that she did not get an opportunity to object to the documents. It is clear from a reading of the judgment of the lower appellate court that the plaintiff did file objection to the application before the lower appellate court and she had admitted Ext.B1 gift deed. After having accepted Ext.B1, it comes with little grace from the plaintiff now to say that she is not bound by Exts. B1 to B5. The lower appellate court has considered various documents produced by the appellants before the lower appellate court and has observed that the plaintiff had no objection to any of the documents produced by the appellant. 8. A reading of Ext.B1 will leave one in no doubt that the claim made by the first defendant that Ext.B1 was only a security for the amount promised to be paid to her S.A.594/1998. 6 and does not amount to mortgage is justified. It is also evident that pursuant to the said document no possession was given to the first defendant and the plaintiff was given 10 cents as per Ext.B1, which she accepted. 9. The lower appellate court was perfectly justified in coming to the conclusion that the plaintiff had not made out any case for relief in the suit. The suit was rightly dismissed by the lower appellate court. No grounds are made out to interfere with the judgment and decree of the lower appellate court. This appeal is without merits and accordingly it is dismissed. There will be no order as to costs. It is made clear that the plaintiff will be entitled to safeguard her possession as far as the 10 cents covered by Ext.B1 is concerned, for which the respondent has no objection. It is also stated that the plaintiff is in possession of 10 cents of property gifted to her as per Ext.B1. The defendants S.A.594/1998. 7 undertake that they shall not trespass into any portion of the 10 cents of the property. That undertaking is recorded. P. BHAVADASAN, JUDGE sb.