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2012 DIGILAW 3931 (MAD)

Duraisamy Kachirayar v. Sengoda Gounder

2012-09-18

G.RAJASURIA

body2012
Judgment :- This second appeal is focussed by the unsuccessful plaintiffs animadverting upon the judgment and decree dated 24.02.2005 passed by the learned Additional District and Sessions Judge cum Fast Track Court, Kallakurichi in A.S.No.64 of 2004 in confirming the judgment and decree dated 21.08.2001 passed by the learned II Additional District Munsif, Kallakurichi in O.S.No.627 of 1997. 2. The parties, for convenience sake, are referred to here under according to their litigative status before the trial Court. 3. Heard both sides. 4. Niggard and bereft of unnecessary details, the germane facts absolutely necessary for the disposal of this second appeal would run thus: a] The appellants/plaintiffs, filed the suit seeking the following reliefs: To pass a judgment and decree (i) for partition and separate possession of the plaintiffs' half share in the suit A schedule properties, after redemption of the mortgage dated 28.10.1978; (ii) for a provision for ascertainment of future mesne profits payable by the defendant to the plaintiffs in respect of their half share in the suit A schedule properties; (iii) for partition and separate possession of the plaintiffs' half share in the suit B schedule properties; (iv) for a provision for ascertainment of future mesne profits payable by the defendant to the plaintiffs in respect of the plaintiffs' half share in the suit B schedule properties and for costs. (extracted as such) b] The defendant resisted the suit by filing the written statement. c] The trial court framed the relevant issues. d] During trial, on the plaintiffs' side P.Ws.1 to 3 were examined and Exs.A1 to A8 were marked. On the defendant's sides D.Ws.1 and 2 were examined and Exs.B1 to B34 were marked. e) Ultimately, the trial court dismissed the suit; as against which, the appeal was preferred by the plaintiffs for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. f) Being aggrieved by and dissatisfied with the judgments and decrees of both the courts below, the plaintiffs have preferred this second appeal suggesting various substantial questions of law. 5. My learned predecessor framed the following substantial questions of law: 1. f) Being aggrieved by and dissatisfied with the judgments and decrees of both the courts below, the plaintiffs have preferred this second appeal suggesting various substantial questions of law. 5. My learned predecessor framed the following substantial questions of law: 1. Whether the respondent was estopped from contending that the appellants and Ramalinga Kachirayar were each entitled to half share in A schedule properties for the reason that RW2 Ramalinga Kachirayar himself admitted that the oral partition the entire A schedule properties were allotted to the appellants and that the appellants and RW2 were entitled to half share in the B schedule properties? 2. Whether once a mortgage always a mortgage the principle applies to the facts of the case and that the appellants are entitled to right of redemption on statutory discharge of Othi mortgage in favour of the respondent herein? 3. Whether the court below committed error in not appreciating the legal effect of usufructory mortgage vis-a-vis the Tamil Nadu Debt Recovery Act viz., Act 40 of 1979 and whether the non-framing of vital issue regarding Othi and discharge of Othi in the light of the provisions contained in Act 40 of 1979 would seriously affect the merits of the case? 4. Whether the appellate court was legally justified in non-suiting the plaintiffs on the footing that the respondent was in possession for a period of 12 years, though such possession was under Othi? (extracted as such) 6. After hearing both sides, to the knowledge of them, I reframed the substantial questions of law as under: 1. Whether the plaintiffs' pleaded and proved oral partition, which allegedly emerged between the plaintiffs' who happened to be the descendants of Gopal Kachirayar, and PW2 Ramalinga Kachirayar and if so, whether in the oral partition the suit properties were allotted to the share of the plaintiffs and if so, after allegedly selling their half share only in items 1 and 2 of the A scheduled properties in the plaint, whether the remaining half share was retained by them along with their right of redemption in respect of the usufructory mortgage found exemplified in Ex.A1? 2. Whether the plaintiffs in the absence of PW2 in the party array as one of the defendants was justified in seeking partition of the "B" Scheduled property? 3. 2. Whether the plaintiffs in the absence of PW2 in the party array as one of the defendants was justified in seeking partition of the "B" Scheduled property? 3. Whether Item No.3 of the A schedule of the plaint was sold by the plaintiffs' as per the sale deeds Exs.B5 and B6 in favour of one Thatchur Sengottaiyan? 4. Whether the first appellate court's cryptic judgment would cut at the root of the ultimate conclusion arrived at by him? 5. Whether both the courts below committed any error in deciding the lis, warranting interference in this second appeal? 7. Both sides advanced their arguments on the additional substantial questions of law, framed by me. 8. All these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with one another. 9. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 - HERO VINOTH (MINOR) VS. SESHAMMAL (ii) 2008(4) SCALE 300 - KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 - STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24) "(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or action on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or action on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the rendering of the finding of facts by both the courts below, the question of interference by the High Court under Section 100 of the Code of Civil Procedure would not arise. 10. Indubitably and indisputably, the relationship among the parties is an admitted one. One Gopal Kachirayar, the father of the plaintiffs'; and Ramalinga Kachirayar (PW2) happened to be the brothers. There existed joint properties for those two brothers. It is the case of the plaintiffs that after the death of Gopal Kachirayar, the plaintiffs' and their uncle viz., PW2 Ramalinga Kachirayar, got the joint properties partitioned; whereby the suit properties found described in the schedule of the plaint were allotted to the share of the plaintiffs. Whereupon, the plaintiffs' mortgaged item Nos.1,2 and 3 of the A schedule properties in favour of Sengoda Gounder, the defendant vide Ex.A1 dated 28.10.1978. However, at the instance of the mortgagee, the signature of Ramalinga Kachirayar was also obtained in Ex.A1. It so happened, according to the plaintiffs' that they sold only half of the extent of properties in item Nos.1 and 2 of the A Schedule properties in favour of Ramalinga Kachirayar, retaining the remaining half shares in those items. However, at the instance of the mortgagee, the signature of Ramalinga Kachirayar was also obtained in Ex.A1. It so happened, according to the plaintiffs' that they sold only half of the extent of properties in item Nos.1 and 2 of the A Schedule properties in favour of Ramalinga Kachirayar, retaining the remaining half shares in those items. As such, they also retained their right of redemption in respect of the half share in the first and second items of the A schedule properties and also in respect of the entire extent of item No.3 in the A schedule and as such, the right of redemption did not get extinguished and wherefore, the suit filed for asserting their right of redemption is maintainable. They also seek partition of their half share in the B schedule of the properties. 11. Whereas, it is the case of the defendant that there was no oral partition as alleged by the plaintiffs and even in the plaint, they did not plead so. The plaintiffs' sold their half share in item Nos.1 and 2 of the A schedule properties in favour of Ramalinga Kachirayar and thereby the plaintiffs' got themselves divested of their right over those items and even by phantasmagorical thoughts, they cannot claim any right over those items under one pretext or other. In turn, PW2-Ramalinga Kachirayar sold the entire extent of the first and second items of the A schedule properties and also the B schedule property in favour of the defendant. So far as the third item of the A schedule property is concerned, half-share in it was sold by the plaintiffs vide Ex.B5 dated 16.07.1983 and the remaining half share was sold by PW2 vide Ex.B6 sale deed dated 17.03.1983 respectively to the defendant. As such, the plaintiffs after selling their entire right over the suit properties, cannot claim that they retained their right of redemption over the suit properties. Right of redemption is integral part of the ownership. Once the ownership itself got transferred from the owner to the transferee, the question of retaining by the transferor, the right of redemption in respect of the property concerned would not arise at all. Absolutely, there is nothing to indicate and establish that there is any more property to be partitioned. 12. Once the ownership itself got transferred from the owner to the transferee, the question of retaining by the transferor, the right of redemption in respect of the property concerned would not arise at all. Absolutely, there is nothing to indicate and establish that there is any more property to be partitioned. 12. At this juncture, I would like to dispel any ambiguity, which might creep in in view of the two names involved in this case. The defendant is Sengoda Gounder and Sengoda Gounder's son-in-law in Thatchur Sengottaiyan. The significance of referring to Thatchur Sengottaiyan is that, it was he who happened to be the transferee/purchaser of the entire item No.3 of the A schedule property vide sale deeds Exs.B5 and B6. As such, once the entire extent of item No.3 of the A schedule property got vested with Thatchur Sengottaiyan, who is not a party to these proceedings, I could see no rhyme or reason on the part of the plaintiffs' in seeking partition as against Sengoda Gounder and also trying to assert their right of redemption. 13. Both the courts below taking into account the pros and cons of the matter held that no oral partition was proved. As per Hindu Law, undoubtedly, the concept of oral partition, is not alien to it. However, it is for the party, who pleads oral partition should prove it. The plaint is silent as silence could be concerning the oral partition. 14. I recollect and call up the maxim -judicis est judicare secundum allegata et probate Accordingly, the defendant would pray for the dismissal of the suit. It is the duty of the judge to decide according to facts alleged and proved. Accordingly, if viewed, any amount of evidence without the back up of the pleadings should be eschewed. Here, the plaintiffs' themselves have not chosen to plead about the oral partition, which allegedly emerged between the plaintiffs' on the one hand and PW2 on the other hand and in such a case, both the courts below cannot be found fault with for having not upheld the alleged oral partition in favour of the plaintiffs. 15. It is a common or garden principle of law that witnesses might lie; but the circumstances would not do so. 16. Here the conduct of the parties is of utmost importance. 15. It is a common or garden principle of law that witnesses might lie; but the circumstances would not do so. 16. Here the conduct of the parties is of utmost importance. Ex.A1, the usufructory mortgage deed itself would show that the plaintiffs and PW2 jointly mortgaged the property in favour of Sengoda Gounder. However, the plaintiffs' got their uncle examined on their side as PW2, who would depose quite antithetical to what he committed himself in black and white in Ex.A1. He would try to camouflage and conceal and gloss over the obstacle by narrating as though he signed Ex.A1 only as a formal party even though he had no right over it. The conduct of PW2 also would be to the effect that he sold vide sale deed Ex.B6, the half portion in item No.3 of the A schedule property and by that, he also unambiguously and unequivocally stated that he had half share in the suit properties and thereby the plaintiffs' theory of oral partition whereby the entire suit properties are allotted to their share stood falsified. 17. Thatchur Sengottaiyan is not a party to these proceedings. PW2's conduct also while executing Exs.B1 and B3 falsified the case of the plaintiffs that the entire suit property were allegedly allotted to the share of the plaintiffs. If really, the entire suit properties were allotted to the plaintiffs' in the alleged oral partition, then PW2 himself would not have any locus standi to execute Exs.B1 and B3, whereby he sold the entire item Nos.1,2 of the A schedule properties and the B schedule properties. 18. I call up and recollect the maxim- Allegans contraria non est audiendus [On alleging contrary or contradictory things (whose statements contradict each other) is not to be heard]. 19. The person who alleges contrary things would not be believed by the Court. Here P.W.2, quite antithetical and contrary to the recitals in the registered documents executed by him, would venture to depose before the Court as though the case of the plaintiffs was on a better footing. As highlighted supra, the oral evidence of P.W.1 and P.W.2 are against their conduct, as stood exemplified and demonstrated, projected and portrayed by virtue of the aforesaid exhibits. 20. As highlighted supra, the oral evidence of P.W.1 and P.W.2 are against their conduct, as stood exemplified and demonstrated, projected and portrayed by virtue of the aforesaid exhibits. 20. Regarding the 'B' scheduled property is concerned, the learned counsel for the plaintiffs would argue that there is nothing to indicate and denote that the defendant acquired absolute ownership over it by virtue of the sale which got effected in his favour from PW.2, when P.W.2 himself was not shown to have acquired absolute right over the said item. Obviously and axiomatically, there is no evidence available on record that the legal heirs of Gopal Kachirayar, namely the plaintiffs, sold their half share in the 'B' scheduled property in parimateria with what they sold relating to items 1 and 2 in favour of P.W.2. As such, apparently P.W.2 could not justify as to how he had the legal competence to sell away the entire property in favour of the defendant, excluding the plaintiffs from participating as sellers in Ex.B1. In a bid to bring clarity on the issue, I would observe that in this case P.W.2 has not been arrayed as a defendant and the facts and figures as stood evinced in the plaint, in no way would enable the Court to order partition only in respect of the 'B' scheduled property alone and that too without complying with the procedural mandates. Hence, I would like to observe that if at all the plaintiffs are so advised, it is open for them to take appropriate legal action to assert their half right in the 'B' scheduled property for partition, separately arraying appropriate and necessary parties as defendants. 21. The provisions of law got embedded in Chapter 4 of the Transfer of Property Act, would clearly convey and connote that if the mortgagee himself becomes the owner of the property or if a mortgagor sells away his property without having any right retained with him, then it is deemed that all rights including the right of redemption got divested from the seller/ original owner/mortgagor. Hence in this view of the matter, I could see no perversity or illegality in the order passed by the Courts below. 22. Hence in this view of the matter, I could see no perversity or illegality in the order passed by the Courts below. 22. There is no gainsaying of the fact that the appellate Court could have been more elaborate in analysing the facts and that too after strictly complying with Order 41 Rule 31 of the Code of Civil Procedure. But in my view, that is not fatal to the judgment of the lower appellate court, which is not a judgment in disagreement with the findings of the lower Court. 23. Accordingly the aforesaid substantial questions of law are answered to the following effect: (i) The Substantial question of law No.1 is decided to the effect that the oral partition as alleged between the plaintiffs', being the sons of Gopal Kachirayar and PW2 Ramalinga Kachirayar was not proved in view of the evidence available and after selling the plaintiffs' half share in item Nos.1 and 2 of the A scheduled properties, they had no more right in the item Nos.1 and 2 of the A scheduled properties and they also lost their right of redemption in connection with the mortgage created under Ex.A1 in respect of those properties and the fact also remains that they also sold their entire half share in the third item of the A scheduled property and in respect of that third item also, they had no right of redemption. (ii) The Substantial question of law No.2 is decided to the effect in the absence of PW2Ramalinga Kachirayar in the party array as one of the defendants, the plaintiffs' cannot seek for partition in respect of the B scheduled property. (iii) The Substantial question of law No.3 is decided to the effect that the plaintiffs' and PW2 sold as per Exs.B5 and B6, the entire extent of the suit properties in item No.3 of the A scheduled property in favour of Thatchur Sengottaiyan. (iv) The Substantial question of law No.4 is decided to the effect that the judgment of the first appellate court was by way of confirming the judgment and decree of the trial court and that the ultimate conclusion is found to be correct. Hence, there is no necessity to set aside the cryptic judgment and decree of the first appellate court. Hence, there is no necessity to set aside the cryptic judgment and decree of the first appellate court. (v) Substantial question of law No.5 is decided to the effect that in view of the ratiocination adhered to above, there is no perversity or illegality in the judgments and decrees of both the courts below, warranting interference in this second appeal. 24. In the result, the Second Appeal is dismissed. However, there shall be no order as to costs.