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2006 DIGILAW 719 (MAD)

Rajamani Nainar & Another v. Subramaniam

2006-03-15

S.ASHOK KUMAR

body2006
Judgment :- (Second Appeal preferred against the judgment and decree dated 29.9.1993 made in A.S.No. 1 of 1993 on the file of the learned Subordinate Judge, Thruvannamalai, confirming the judgment and decree dated 30.9.1992 made in O.S.No. 264 of 1987 on the file of the learned District Munsif, Polur.) The defendants are the appellants in the present second appeal. 2. The plaintiff filed the suit claiming a sum of Rs.12932.50 lent by her as a mortgage debt by pledging the schedule mentioned property, with interest. According to the plaintiff the defendant obtained a sum of Rs.7,000/= on 11.1.1978 by executing a mortgage deed agreeing to repay the same with 12% by pledging the first item of suit property in S.No:341/4 along with another punja land. Since the defendant failed to repay the principal sum with interest, inspite of several requests and to the legal notice dated 5.11.1986, has sent a reply setting up false please, the suit has been filed. The defendant is having annual income of more than Rs.10,000/= and is having property worth of RS.50,000/=, the benefits under Debt Relief Acts will not apply. The plaintiff also restricted his interest claim at 9%. 3. The defendant is none other than the mother of the plaintiff. During the pendency of the proceedings the defendant died and her other legal heirs, other three sons have been brought on record. The defendants deny the very execution of the mortgage deed as there was no necessity nor any need to execute such a deed. The plaintiff taken the defendant to the Sub Registrar Office and on a misrepresentation obtained her LTI as it is required for attestation as a witness. According to the defendants, the plaintiff himself was not in a position to lend money to others and in fact he had executed a usufructuary mortgage deed in favour of one Kannappa Udaiyar on the same date i.e., 11.1.1978 by mortgaging his properties. Only to cheat the brothers, the alleged mortgage deed has been created by the plaintiff. On the same date a registered settlement deed was executed by the defendant in favour of the plaintiff's wife. Hence, he could not have lent money tot he defendant on the same date. All these facts will go to show that the suit mortgage deed is not genuine, not supported by consideration and it is only created out of undue influence. Hence, he could not have lent money tot he defendant on the same date. All these facts will go to show that the suit mortgage deed is not genuine, not supported by consideration and it is only created out of undue influence. The deceased first defendant had no income of her own and had no property worth of even Rs.10,000/= at the relevant point of time and hence she is entitled to the debt reliefs Acts. 4. On the said pleadings and on hearing the learned counsel on either side and taking into consideration of the documentary and oral evidence, the trial court decreed the suit. On appeal, by the defendants, the first appellate court modified the findings of the trial court and granted 3/4th share in respect of the reliefs. Aggrieved by the same, the second appeal has been preferred by the defendants. 5. At the time of admission, the following substantial Question of Laws were framed by this Court for consideration:- "(i) Whether the courts below have not failed to note that the plaintiff had not proved "due execution" of the mortgage and that he had advanced money to D.W.1 his mother (ii) Whether the courts below have not followed the judgment of the Madras High Court in 1993 (1) MLJ 535 (Chidambaram Pillai Vs. Muniammal) and held that the plaintiff had failed to discharge the burden of proof as required under Sections 101 to 104 of the Evidence Act? (iii) Whether the courts below ought not to have held that the plaintiff has failed to prove the execution of the mortgage supported by consideration, in the light of the evidence of D.W.1? (iv) Whether the courts below ought not to have applied the principle of non-est factum and dismissed the suit for want of proof and execution of Ex.P.1? (v) Whether the courts below are right in holding that the non production of certificate from the Tahsildar under the Debt Relief Act will prevent the appellants from claiming benefits under the moratorium Acts?" 6. Learned counsel appearing for the appellant contended that the plaintiff himself has borrowed Rs.1,000/= by pledging his properties to another person and it is highly unbelievable that he lent Rs.7,000/= to the defendant on the same date. Learned counsel appearing for the appellant contended that the plaintiff himself has borrowed Rs.1,000/= by pledging his properties to another person and it is highly unbelievable that he lent Rs.7,000/= to the defendant on the same date. Moreover, The survey number has been wrongly mentioned in the mortgage deed though the same has been rectified by way of amendment on the direction of this Court on Revision. Further, whether the defendants are entitled to the benefits of the Debt Reliefs Acts or not shall be considered by the authorities concerned and not the courts below. 7. In spite of several opportunities, there is no representation for the respondent, though he has been represented by a Senior Counsel before S.R. Singharavelu,J., and hence the second appeal was reserved for judgment to decide the same on merits. 8. As regards the claim under the Debt Relief Acts 13 of 1980 and 50 of 1982, as rightly held by both the courts below, neither the first defendant, nor the defendants 2 to 4 have applied before the Statutory Authority and got a discharge certificate. Thus it is clear that the defendants have not proved that they are entitled to get protection under the said enactments. Even their Lordships of the Supreme Court in P. Nirathilingam Vs. Annaya Nadar, reported in 2001 (9) SCC 673 have held that "In a case where a suit is filed by the creditor against the debtor before the debtor makes the application to the Tahsildar seeking relief under the Act the property and reasonable course to be followed is to stay the proceeding in the suit till the Tahsildar/Appellate Authority disposes of the proceeding under the statute. If t is held in that proceeding that the debtor is not entitled to the benefit under the Act, then the civil suit may be proceeded with, if on the other hand it is held that the debtor is entitled to the benefits provided in the Act then the suit has to be dismissed under Section 4. In no case can it be held that by filing of a civil suit for realisation of the mortgage amount the proceeding pending before the Tahsildar or the Appellate Authority is to be dismissed without adjudication." Thus the Hon'ble Supreme Court held that the reasoning of the High Court that after filing of the civil suit the statutory authorities have no jurisdiction is wrong. In the present case, there is no proof to hold that neither the first defendant nor her sons, namely defendants 2 to 4 have either applied or obtained discharge certificates under the Acts. Hence the contention of the learned counsel for the appellant in this regard is liable to be rejected. 9. As regards the genuineness of Ex.A.1 mortgage deed, the first appellate court held that though there were some discrepancies in the evidence of the witnesses, from the cogent and acceptable evidence of P.W.2 and P.W.3, who are one of the attestor and the other Sub Registrar, who registered the document, who have spoken to about the execution of the document, it is clear that Ex.A.1 is a genuine document and it is not as it it is a created document, or the defendant had signed in the same without having knowledge of the same, as she had executed some other mortgage deed of the same nature. Therefore the allegation that she had been misled or misrepresented while execution of the mortgage is liable to be rejected. As rightly held by the first appellate court there is no allegation of coercion. It cannot be said that merely because she is an illiterate and had put her thumb impression in the document, the said document has been obtained from her on a false representation. In her evidence DW.1 stated that she had no enmity with the attestors. From the above, it is clear that due execution of Ex.A.1 mortgage deed has been proved the plaintiff has discharged the burden of proof as required under Section 101 to 104 of the Evidence Act. 10. In her evidence D.W.1 also stated that from the property allotted to her she would receive only two bags of rice worth about Rs.250/=. Hence, it cannot be held that she was not in necessity to obtain loan from the plaintiff. Though it is alleged by her that she did not receive the consideration from the facts and circumstances of the case it has to be held that only after receiving the consideration she has executed Ex.A.1 mortgage deed. Hence, it cannot be held that she was not in necessity to obtain loan from the plaintiff. Though it is alleged by her that she did not receive the consideration from the facts and circumstances of the case it has to be held that only after receiving the consideration she has executed Ex.A.1 mortgage deed. Ultimately, the first appellate court by placing reliance on the partition deed, the first appellate court had rightly found that being one of the son to discharge his 1/4th share of debt obtained by her mother on the A Schedule property, the plaintiff is entitled to claim only 3/4th share of the relief. Accordingly all the questions of law are answered against the appellants. 11. In the result, the second appeal is dismissed confirming the judgment and decree of the first appellate court. Considering the relationship between the parties, there is no order as to costs.