Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 1070 (AP)

Syed NoorMohammad v. Syed Khaja Moinuddin

2007-10-31

L.NARASIMHA REDDY

body2007
JUDGMENT: - The second plaintiff in O.S.No.2613 of 1979 on the file of the IX Assistant Judge, City Civil Court, Hyderabad is the appellant. The suit was filed by the appellant and his brothers, respondents 3 and 4, against the sole defendant one Sri Syed Abdul Sattar, the father of respondents 1 and 2 herein, for redemption of mortgage covered by a mortgage deed, dated 23.01.1950. 2. For the sake of convenience, the parties are referred to as arrayed in the suit. 3. It was pleaded that the father of the plaintiffs mortgaged the property in favour of the first defendant (who died during the pendency of the suit) as a security for repayment of Rs.4,000/- in Osmania Currency, equivalent to Rs.3,420/-. A legal notice, dated 01.03.1971, was got issued, offering to pay the mortgage amount and requesting redelivery of the suit schedule property. Thereupon, the first defendant got issued a reply, dated 09.03.1971, stating that the father of the plaintiffs had executed a document, dated 02.09.1956, marked as Ex.B-53, expressing his inability to pay the borrowed amount and conferred rights of ownership upon him, vis--vis the property. The plaintiffs contended that the mortgage still subsisted. Certain other contentions were also urged. The defendants filed a written statement, almost repeating their stand, taken in their reply to the notice, dated 01.03.1971. 4. The trial Court dismissed the suit. It was held that in view of the execution of Ex.B-53, the right of redemption has been relinquished. The second plaintiff alone filed A.S.No.16 of 1991 in the Court of the Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed on 22.10.1996 by confirming the findings of the trial Court, and by observing that it abated on account of the death of some of the parties. Hence, this second appeal. 5. Sri Mirza Safiulla Baig, the learned counsel for the second plaintiff submits that the right of redemption conferred under Section 60 of the Transfer of Property Act, 1882 (for short 'the Act') is absolute in nature and there was no basis for the Courts below, in denying the said relief to his client. He contends that Ex.B-53 was not proved as required under law, and not being a registered document, it cannot eclipse the right to redeem the mortgage. He contends that Ex.B-53 was not proved as required under law, and not being a registered document, it cannot eclipse the right to redeem the mortgage. As regards the observation of the lower appellate Court about the abatement of the appeal, he contends that his client did not have the information about the abatement on account of the death of plaintiffs 1 and 3, who were shown as respondents 3 and 4 herein. He submits that no definite information was furnished as required under Rule 10-A of Order 22 C.P.C. and the appeal cannot be treated as abated. 6. Sri A.M.Srinivasa Ranga Chari, the learned counsel for the defendants, on the other hand, submits that Ex.B-53 was proved to the satisfaction of the Court and, thereby, the proviso to Section 60 of the Act is attracted. He contends that being the brother of the other two plaintiffs, the second plaintiff ought to have taken necessary steps to bring the legal representatives of the deceased plaintiffs 1 and 3, on record. 7. The whole controversy in this second appeal turns around the validity and the legal effect of Ex.B-53. The fact that the suit schedule property was mortgaged by the father of the plaintiffs in favour of the deceased first defendant, is not disputed. The trial Court framed as many as nine issues for its consideration. Since the controversy is very limited, it is not necessary to extract all of them. 8. On behalf of the plaintiffs, P.Ws. 1 to 3 were examined and Exs.A-1 to A- 11 were marked. Ex.A-1 is the mortgage deed and Ex.A2 is the plan attached to it. Ex.A-3 is the legal notice got issued by the plaintiffs proposing to redeem the mortgage. The other documents are not important. On behalf of the defendants, D.Ws. 1 to 3 were examined and Exs.B-1 to B-147 were marked. Most of them are in the form of receipts for payment of house tax, repairs etcetera. Important among them are, Ex.B-10, the reply to Ex.A3, and the letter of relinquishment marked as Ex.B-53. 9. The trial Court dismissed the suit by accepting the version of the defendants that the father of the plaintiff has extinguished the right to redeem, by executing Ex.B-53. Important among them are, Ex.B-10, the reply to Ex.A3, and the letter of relinquishment marked as Ex.B-53. 9. The trial Court dismissed the suit by accepting the version of the defendants that the father of the plaintiff has extinguished the right to redeem, by executing Ex.B-53. In addition to upholding the finding of the trial Court, the lower appellate Court held that the appeal preferred by the second plaintiff abated on account of the failure to bring the legal representatives of the deceased plaintiffs 1 and 3 on record. 10. Section 60 of the Act confers almost unqualified right on a mortgagor, to seek redemption of mortgage, by paying the amount covered by the mortgagee. No time limit is specified for this purpose. The consequences that must flow, on payment of the mortgage amount are stipulated in the section itself. The only rider is contained in the proviso. It is beneficial to extract Section 60, which reads as under: Right of mortgagor to redeem:-- At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re- transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property:-- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in while or in part, the share of a mortgagor. 11. From a perusal of the proviso, it is evident that a mortgagor is conferred with the right to redeem the mortgage, without any limitation, as to time. By itself, law does not eclipse such a right. However, a mortgagor can extinguish the right to redeem, by his acts. The other eventuality through which the right of redemption can be extinguished, is through a decree of a Court. 12. It was specifically pleaded by the defendants that the father of the plaintiffs extinguished his right to redeem the mortgage, by executing Ex.B-53. The true translation of Ex.B-53 reads as under: Moulvi Syed Abdul Sattar Sahab, Tasleem, I hereby execute to this effect that I have got mortgaged my house with you for rupees four thousand only. Its period has expired. I am not in a position to get it redeemed. Therefore, you have now rights to get it auctioned and receive the amount. I have now no concern whatsoever with this house. You are authorized owner of this house. These presents shall be deemed to be absolute guide between us. Syed Khundmeer 2ndSeptember,1965. 13. The intention of the executant of Ex.B-53 was very clear. He expressed his inability to pay the borrowed amount and he conferred upon the mortgagee, the right to auction the property and receive the resultant amount. Further, no uncertainty was left about the consideration. These presents shall be deemed to be absolute guide between us. Syed Khundmeer 2ndSeptember,1965. 13. The intention of the executant of Ex.B-53 was very clear. He expressed his inability to pay the borrowed amount and he conferred upon the mortgagee, the right to auction the property and receive the resultant amount. Further, no uncertainty was left about the consideration. He did not reserve to him, the right to receive any amount, received in excess of what is due to the mortgagee; nor did he undertake, to replenish the deficit, if any. The last sentence of the first paragraph clearly conferred the right of ownership upon the mortgagee, over the mortgaged property. 14. It is no doubt true that the document cannot be treated as a source of ownership. However, the recitals therein assume significance, in the context of ascertaining the intention of the executant. The cumulative effect of various recitals is that the mortgager did not expect any further amount from the mortgagee and he was satisfied to be relieved of the obligation to pay the amount borrowed by him. Therefore, there was a clear extinction of the right to redeem the mortgaged property. It is difficult to accept the contention of the learned counsel for the second plaintiff that Ex.B-53 cannot be accepted, since it was not registered. Neither Section 60 of the Act nor any other provision of law mandates that a document, which has the effect of extinguishing the right to redeem, must be registered. Wherever a document is required to be registered, the relevant provisions make the same, very clear. In the absence of a specific requirement under a definite provision of law, it cannot be insisted that a document, which has the effect of extinguishing the right to redeem, must be registered. 15. The proviso to Section 60 does not stipulate any definite form in which the right of redemption can be extinguished. It only refers to acts of the parties. Such acts can be manifested, expressed in several ways. It is not even mandatory that the relinquishment must be reflected in writing. In a given case, even oral statements, which are proved through acceptable evidence, can constitute the acts mentioned in the proviso. 16. Things would have been totally different had the original mortgager himself raised any dispute as to the implication of Ex.B-53. It is not even mandatory that the relinquishment must be reflected in writing. In a given case, even oral statements, which are proved through acceptable evidence, can constitute the acts mentioned in the proviso. 16. Things would have been totally different had the original mortgager himself raised any dispute as to the implication of Ex.B-53. Admittedly, the mortgager was alive for quite some time after 1956. He honoured the legal implications flowing from Ex.B-53 and did not take any plea to the contrary. His legal representatives cannot improve upon the situation. 17. Secondly, plaintiffs 1 and 3 (respondents 3 and 4 herein) who are none other than the brothers of the second plaintiff, i.e. appellant died while A.S.No.16 of 1991 was pending. They were shown as respondents 2 and 3 in the first appeal. No steps were taken to bring their legal representatives on record. The plea that no memo, as contemplated under Rule 10-A of Order 22 C.P.C. was filed, would not be of any help to the second plaintiff. In Gurajala Bharathi vs. Vindhya Corporation1, a Division Bench of this Court held that the said provision is not mandatory and non-compliance thereof would not relieve, the plaintiff in a suit or an appellant in an appeal, of their obligation to bring the legal representatives of the deceased parties, on record. The cause of action was not separable. The inevitable consequence was that the appeal abated. Viewed from any angle, this Court does not find any basis to interfere with the judgments rendered by the Courts below. 19. Hence, the second appeal is dismissed. There shall be no order as to costs.