Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 1617 (MAD)

Kanniah Naidu v. Kalaichelvan

2014-06-23

P.R.SHIVAKUMAR

body2014
Judgment : 1. The defendant in the original suit O.S.No.58 of 1997 on the file of the Additional District Munsif, Mayiladuthurai is the appellant in the second appeal. The respondent herein filed the above said suit for redemption of alleged oral mortgage regarding the suit property and in the alternative for recovery of possession of the suit properties based on title, from the appellant herein/defendant. The said plea was made on the basis of the contention that the respondent/plaintiff borrowed a sum of Rs.15,000/-from the appellant/defendant and created a oral mortgage by which the appellant/defendant was put in possession with the understanding that he could enjoy the income derived from the property in lieu of interest. 2. The appellant herein/defendant resisted the suit by contending that there was no such oral arrangement and on the other hand, the properties were in possession of his son Mohan pursuant to an agreement for sale dated 10.10.1989 executed by the father of the respondent herein/plaintiff in his capacity as Kartha of the family consisting of himself and the respondent/plaintiff. It was also contended that the entire sale consideration of Rs.40,000/-was paid by Mohan and the sale deed was also executed on 05.02.1990, but before the same could be presented for registration, the respondent/plaintiff demanded further amount and refused to go for registration and that the son of the appellant herein being the purchaser under the agreement, put in possession, was entitled to the protection under Section 53-A of the Transfer of Property Act, besides having a right to seek specific performance of the contract. As a corollary to the said plea, the appellant/defendant also took a plea that the father of the respondent herein/plaintiff as well as Mohan, the son of the appellant herein/defendant were necessary parties and the suit was bad for non-joinder of necessary parties. 3. Issues were framed by the trial Court and a trial was conducted in which two witnesses were examined as Pws 1 and 2 and 5 documents were marked as Exs.A1 to A5 on the side of the respondent herein/plaintiff. On the side of the appellant herein/defendant, three witnesses were examined as Dws 1 to 3 and 14 documents were marked as Exs.B1 to B14. The learned trial Judge, after considering the evidence, accepted the contention of the appellant herein/defendant that the right of redemption has not been substantiated. On the side of the appellant herein/defendant, three witnesses were examined as Dws 1 to 3 and 14 documents were marked as Exs.B1 to B14. The learned trial Judge, after considering the evidence, accepted the contention of the appellant herein/defendant that the right of redemption has not been substantiated. However, the learned trial Judge held that since the title of the respondent/plaintiff is not in dispute, he was entitled to a decree for recovery of possession of the suit property from the appellant herein/defendant. The learned trial Judge did it based on his finding that though the appellant / defendant set up an agreement for sale in favour of his son Mohan and Mohan's possession to be in part performance of the agreement for sale, such a contention was not substantiated by taking steps to implead the said Mohan or to examine him as a witness on his side. Accordingly, the learned trial Judge decreed the suit regarding the alternative plea for recovery of possession on the basis of title. The decree of the trial Court dated 18.03.2004 was challenged before the lower appellate Court, namely learned Principal Subordinate Judge, Mayiladuthurai in A.S.No.99 of 2004. The learned lower appellate Judge also concurred with the findings of the trial Court and dismissed the appeal by his judgment and decree dated 06.04.2005. As against the decree of the lower appellate Court dated 06.04.2005 made in A.S.No.99 of 2004, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal. 4. The second appeal came to be admitted identifying two questions to be the substantial questions of law involved in the second appeal. They are as follows: “1. Whether the purchase of properties in the individual names of father and son out of the sale proceeds of joint family property leads to the inference of partition? 2. Whether a suit for possession should fail for non-joinder of necessary party, if the person in possession is not made a party to the suit?” 5. The arguments advanced by Mr.Gowthama Narayanan, learned counsel for the appellant and by Mr.K.V.Sajeev Kumar, learned counsel for the respondent are heard. The materials available on record are also perused. 6. 2. Whether a suit for possession should fail for non-joinder of necessary party, if the person in possession is not made a party to the suit?” 5. The arguments advanced by Mr.Gowthama Narayanan, learned counsel for the appellant and by Mr.K.V.Sajeev Kumar, learned counsel for the respondent are heard. The materials available on record are also perused. 6. It is the contention of the learned counsel for the appellant that both the Courts below erroneously cast the burden of proving that the suit property was not in the possession of the appellant/defendant and it was in the possession of the son of the defendant in part performance of an agreement for sale allegedly executed by the father of the respondent herein/plaintiff in favour of Mohan, the son of the appellant herein on 10.10.1989. 7. It is pertinent to note that the title of the respondent herein/plaintiff in respect of the suit property is not denied. In fact, there are materials in the pleadings made in the written statement that pursuant to the agreement, a sale deed itself was prepared and signed by the respondent herein/defendant, but the registration of the same could not be completed as the respondent/plaintiff changed his mind and wanted more money. The very admission made therein that the respondent/plaintiff was the person, who executed the unregistered sale deed, would show that the appellant/defendant did give a go by to his plea that the suit properties were the properties belonging to the joint family consisting of the respondent/plaintiff and his father and the father of the respondent/plaintiff acted as Kartha in executing the agreement for sale. 8. Furthermore, it is an admitted fact that the properties in question are not the ancestral properties inherited by the respondent/plaintiff and his father. Admittedly, Items 1 and 2 were purchased under a registered sale deed dated 04.10.1984 in the name of the respondent / plaintiff and items 3 to 5 were purchased on the same day under another sale deed in the name of the respondent/plaintiff. Both the sale deeds have been produced and marked as Exs.A1 and A2. Admittedly, Items 1 and 2 were purchased under a registered sale deed dated 04.10.1984 in the name of the respondent / plaintiff and items 3 to 5 were purchased on the same day under another sale deed in the name of the respondent/plaintiff. Both the sale deeds have been produced and marked as Exs.A1 and A2. It is the case of the appellant/defendant that the consideration for the purchase of the said properties came from the joint family property of the respondent/plaintiff and his father, who jointly sold it and chose to purchase some properties in the name of the plaintiff and some other properties in the name of the father of the plaintiff. The mere fact that the joint family properties were sold jointly by the plaintiff and his father and using the sale proceeds, they purchased properties separately in their names, will make it clear that the father of the plaintiff was not acting as Kartha and there had been a deviation in status and that, after jointly selling joint family property, they divided the sale proceeds and with the share in the sale proceeds, they purchased properties separately in their names. In the light of the above said facts and especially the fact that the respondent/defendant has purchased the suit properties individually in his own name, the concurrent finding of the Courts below that the suit property is the separate property of the respondent/plaintiff cannot be found fault with and there cannot be any scope for holding such finding to be perverse. The fact that the proceeds of the sale of the joint family property was used for the purchase of separate properties in the individual names of father and son will no doubt lead to a necessary inference that there was a division in status and the sale proceeds of joint family property jointly sold by the plaintiff and his father was shared by them and that such share in the sale proceeds were used for the acquisition of the properties separately in the individual names of the respondent/plaintiff and his father. The first substantial question is accordingly answered against the appellant and in favour of the respondent. 9. The plea of the appellant/defendant that the suit was bad for non-joinder of necessary parties was negatived by both the courts below. The same formed the basis for framing the second substantial question of law. The first substantial question is accordingly answered against the appellant and in favour of the respondent. 9. The plea of the appellant/defendant that the suit was bad for non-joinder of necessary parties was negatived by both the courts below. The same formed the basis for framing the second substantial question of law. The said plea of nonjoinder of necessary parties had been taken by the appellant/defendant has got two limbs. The first limb of the contention is that the non-impleadment of Kaliamurthy, the father of the respondent/plaintiff, who according to the appellant / defendant executed Ex.B6 agreement for sale in favour of Mohan, would affect the maintainability of the suit as the said Kaliamurthy was a necessary party to have been impleaded in the suit. The second limb of the said contention is that since according to the appellant/defendant the properties were in possession and enjoyment of Mohan, the son of the appellant herein/defendant, in part performance of Ex.B6 agreement for sale, he was a necessary party. According to the appellant/defendant non-impleadment of both Kaliamurthy and Mohan was fatal to the suit and the courts below committed an error in law in not properly considering the question of non-joinder of necessary parties. 10. In this regard, learned counsel for the respondent contends that the alleged agreement in favour of Mohan and possession by Mohan has not at all been admitted by the respondent/plaintiff and that on the other hand, the categorical stand taken by the respondent/plaintiff is that the appellant/plaintiff alone is in possession and he was put in possession by the respondent/plaintiff. Of course, the respondent/plaintiff did take a plea that the appellant/defendant was put in possession pursuant to a oral mortgage and the respondent/plaintiff should be allowed to redeem the mortgage as one of the alternative pleas. But, since the amount secured by the alleged oral mortgage is more than Rs.100/-, the suit laid on the basis of alleged oral mortgage cannot be maintained and the same was the reason why he has chosen to take an alternative plea for the recovery of possession on the basis of title. 11. Of course, it cannot be disputed that the respondent/plaintiff cannot succeed in his attempt to recover possession on the basis of his plea for redemption of mortgage. 11. Of course, it cannot be disputed that the respondent/plaintiff cannot succeed in his attempt to recover possession on the basis of his plea for redemption of mortgage. On the other hand, when his plea of oral mortgage is to be negatived on the ground of absence of registered mortgage deed, then it shall be open to the plaintiff to seek relief of recovery of possession based on title and such prayers can be made alternatively as they are not mutually destructive of each other. This was held so by the Supreme Court in Kolathoor Variath and another Vs. Pairaprakottoh Cheriya Kumhahammad Haji reported in AIR 1974 Supreme Court 689 by observing as follows: “Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title.” Only because the respondent/plaintiff has taken such an alternative plea for recovery of possession based on title, the appellant/defendant seems to have taken a plea that the property is not in his possession and on the other hand, is in the possession and enjoyment of his son Mohan in part performance of an agreement for sale. Of course, when the defendant pleads that he is not in possession of the property and on the other hand, it is in the possession of another person, it shall be prudent on the part of the plaintiff to implead the other person who is said to be in possession, so as to get a decree binding on him also. If the plaintiff takes the risk of the execution being resisted by the person who is not a party to the suit on the basis of an agreement for sale and tries to prove his case that he did put the defendant in possession of the property by virtue of any other arrangement, then there can be no impediment for the Court to decide the case based on the available materials as to whose case is probable. 12. In this case, besides propounding an agreement for sale which was not executed by the respondent/plaintiff, the appellant / defendant also contended that a sale deed was in fact executed by the respondent/plaintiff himself, but it was not registered. 12. In this case, besides propounding an agreement for sale which was not executed by the respondent/plaintiff, the appellant / defendant also contended that a sale deed was in fact executed by the respondent/plaintiff himself, but it was not registered. The said document has not been produced for any admissible purpose, namely to prove that there was an agreement and the agreement was binding on the plaintiff and pursuant to the agreement, the sale deed was executed. It is also an admitted fact that after the purchases made separately in the individual names of the respondent herein and his father, they fell apart and they are not in cordial terms with each other. The said admission is reflected in the written statement which says that the plaintiff and his father were on cordial terms and were living together in the same house till the Middle of 1991 and subsequently, there arose misunderstanding between them. There is no evidence and unambiguous plea as to why the respondent/plaintiff was not asked to sign the agreement for sale and why the son of the respondent chose to seek a sale deed from the respondent himself rather than making the father of the respondent to execute the sale deed as Kartha of the family. Under such circumstances alone, on broad probabilities of the case, the Courts below arrived at a conclusion that it was the appellant/defendant who was put in possession and if at all Mohan could make a claim based on his own right that would not be enough to hold that the suit was bad for non-joinder of necessary party. Based on preponderance of probabilities, the Court came to the conclusion that the defendant was in possession of the suit properties and hence the plaintiff was entitled to recover possession from the plaintiff. In view of the above said discussion, this Court answers the second substantial question of law also against the appellant and in favour of the respondent. The result of the answers provided for both the substantial questions of law shall be the confirmation of the decree passed by the trial Court as confirmed by the appellate Court and the dismissal of the second appeal. Accordingly, the second appeal is dismissed. No costs.