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2004 DIGILAW 648 (KER)

D. Vijayalakshmi v. The Kerala State Financial

2004-12-20

K.S.RADHAKRISHNAN, M.N.KRISHNAN

body2004
Judgment :- Radhakrishanan, J. Writ Petition was filed by the appellant herein seeking a direction to the Kerala State Financial Enterprises Ltd. to return the original of sale deed No.126 of 1997 of Sub Registry, Nemom to the petitioner on discharging the entire liabilities subsisting over the property on paying the amounts due from the 4th respondent towards chitty No.56/99. 2. Writ petitioner is the owner in possession of 14.80 ares of land comprised in resurvey NO.758/5 of Nemom Village. She purchased the said property for valuable consideration as per sale deed No.172 of 2003 of Sub Registry, Nemom on 16-1-2003 from the 4th respondent. While so, 3rd respondent visited the property and informed her that proceedings are being initiated against the property purchased by her for loan amounts due from the 4th respondent. She made enquiries with the 2nd respondent with regard to the loan transactions of the 4th respondent. She came to know that the 4th respondent has subscribed to chitty No.56/99 as chital No.25 conducted by the Chalal unit of the first respondent and had pledged the property covered by Ext.P1 as security for repayment of the prize amount. The liability subsisting as on December 2003 with regard to that chitty transaction is Rs.1,14,147/-. Petitioner claimed that she is bonafide purchaser for value. Therefore she approached the 2nd and 3rd respondents and informed them that she is ready and willing to clear off the entire liability subsisting under chitty NO.56/99. She also requested the 2nd respondent to return the title deeds since the property in question was mortgaged to the 2nd respondent. Second respondent took up the stand that 4th respondent had availed of a new chitty loan as NO.1255 liability as on December 2003. Fourth respondent, towards the said chitty loan, has offered a property having an extent of 12.5 cents comprised in survey NO.36/5 of Manacaud village as security for the said loan transaction. Fourth respondent has also offered six cents of property belonging to him comprised in Sy.No.1679/1 and 1679/2 as security for the amounts priced in Chitty No.30 of 2000 by his sons Sanjaya Kumar (Chittal No.27) and Vijayakumar (chital No.28). The amounts outstanding in the name of Sanjayakumar and Vijayakumar on account of the aforesaid chitty transaction is Rs.87,354/-. Fourth respondent has also offered six cents of property belonging to him comprised in Sy.No.1679/1 and 1679/2 as security for the amounts priced in Chitty No.30 of 2000 by his sons Sanjaya Kumar (Chittal No.27) and Vijayakumar (chital No.28). The amounts outstanding in the name of Sanjayakumar and Vijayakumar on account of the aforesaid chitty transaction is Rs.87,354/-. Petitioner pointed out that other liabilities of 4th respondent with regard chitty loan No.1252 and chitty No.30/2000 have already secured by mortgage of other properties and not the property purchased by the petitioner. Further it was stated, the petitioner is not liable to discharge that liabilities since the property purchased by the petitioner is not mortgaged by 4th respondent to 2nd respondent. 3. Learned single Judge took the view that eventhough the property purchased by the petitioner was not mortgaged so far as other loan transactions are concerned, the KSFE being a creditor can proceed against the 4th respondent in respect of rest of his assets though not mortgaged. Learned single Judge accepted the stand of respondents 1 and 2 that they cannot release the title deed to the petitioner in respect of one item of mortgaged property, unless all arrears are cleared by the 4th respondent in respect of other chitty transactions. Learned single Judge took the view, this position is consistent with the provisions of Section 53 of the TP Act and Section 44 of the RR Act. Under such circumstance learned single Judge dismissed the writ petition. 4. We find it difficult to accept the reasoning of the learned single Judge and the stand taken by the 2nd respondent. Chitty No.56/99, Chitty Loan No.1255 and Chitty No.30/2000 are separate independent transactions and independently secured by mortgage of separate immovable properties. So far chitty No.56/99 is concerned the same is secured by pledging property covered by Ext.P1 as security for the prize amount, a property purchased by the writ petitioner. The liability outstanding to that transaction is Rs.1,14,147/-. Chitty loan No.1255 is secured by mortgaging a property having an extent of 12.5 cents comprised in Sy. NO.36/5 of Manacaud Village. An amount of Rs.2,13,633/- is outstanding with regard too that transaction. So also chitty NO.30/2000 which was prized by the sons of the 4th respondent is secured by mortgage of 6 cents of property belonging to 4th respondent comprised in survey NO.1679/2. NO.36/5 of Manacaud Village. An amount of Rs.2,13,633/- is outstanding with regard too that transaction. So also chitty NO.30/2000 which was prized by the sons of the 4th respondent is secured by mortgage of 6 cents of property belonging to 4th respondent comprised in survey NO.1679/2. An amount of Rs.87,975/- and Rs.81,354/- is outstanding with regard tot hat transaction. Counsel for the second respondent laid considerable stress on Section 44 of the Revenue Recovery Act and section 53 of the Transfer of Property Act in support of his contention. Counsel for the writ petitioner however, submitted that the loan transactions entered into by the 4th respondent are independent and separate and therefore can be redeemed/discharged separately in view of section 61 of the Transfer of Property Act. 5. Section 53 would not apply in cases where transactions are covered and secured by independent mortgage of immovable properties. The transactions in the present case is an independent and separate transaction. Only if the property mortgaged is transferred the question of defeating the creditor arises. But the vendee is prepared to pay off the liability. Properties mortgaged in respect of chitty loan NO.1255 and chitty No.30 are transferred the question of application of Sec.53 would apply. So far as chitty No.56 is concerned, petitioner has expressed willingness to discharge the entire liability by paying an mount of Rs.1,14,147/-, in the even of which Sec 53 would not apply. 6. We may now consider whether the request made by the petitioner would be hit by section 44 of the R.R. Act. Section 44 says that any engagement entered into by the defaulter with anyone in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government and any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear shall not be binding upon the Government. So far as the petitioner is concerned, he is willing to pay all the liability in respect of chitty No.56, therefore, section 44 also would not apply. 7. Counsel for the petitioner referred to section 61 of the T.P. Act which reads as follows: 61. So far as the petitioner is concerned, he is willing to pay all the liability in respect of chitty No.56, therefore, section 44 also would not apply. 7. Counsel for the petitioner referred to section 61 of the T.P. Act which reads as follows: 61. Right to redeem separately or simultaneously:- A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money or any two or more of the mortgages has become due, be entitled to redeem any one of such mortgage separately, or any two or more of such mortgages together. This section abolishes the doctrine of consolidation. Section makes it clear that where a mortgagor has executed several mortgages in favour of the same mortgagee over the same property, he is, in the absence of a contract to the contrary, entitled to redeem any of them without at the same time redeeming the others. Contract to the contrary is relevant. It is open to the parties under this section to enter into a contract to combine to or more mortgages, and to agree that one shall not be redeemed without redeeming the others also. The contract to the contrary, being in derogation of the right of redemption, must be clearly and unequivocally expressed and must be strictly construed. Unless and until there is a contract to the contrary the mortgagee has not legal right to stand in the way of redeeming the mortgaged property for transaction for which there is no liability or for a transaction for which the mortgagor is willing to discharge. There is no stipulation in any of these chitty transactions or agreements that petitioner would not sell the other properties unless the mortgage debts in respect of some other transactions are discharged. We are of the view unless and until such stipulation is there the loan transactions in respect of other chitty loan No.1255 and chitty No.30/2000 are not covered by the property covered by Ext.P1. The second respondent has therefore no legal right to retain hat document since petitioner has agreed to discharge that liability. There is also no case for the 2nd respondent that petitioner has executed any personal quarantee for the discharge of debt in respect of a chitty No.30/2000 or chitty loan No.1255. 8. The second respondent has therefore no legal right to retain hat document since petitioner has agreed to discharge that liability. There is also no case for the 2nd respondent that petitioner has executed any personal quarantee for the discharge of debt in respect of a chitty No.30/2000 or chitty loan No.1255. 8. We are therefore of the view, if petitioner discharges the liability in respect of chitty No.56/99 the title deed of the property mortgaged has to be returned by the second respondent. It is so ordered. Judgment of the learned single Judge would stand set aside. Writ appeal is allowed as above.