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2018 DIGILAW 1113 (GAU)

LALTANPUII, D/O LALPUITHANGA (L) v. V. ZALIANA

2018-07-27

SONGKHUPCHUNG SERTO

body2018
JUDGMENT : S. SERTO, J. 1. This is an appeal filed under section 96 of the CPC read with section-17 of the Mizoram Civil Court Act, directed against the judgment and order dated 28.05.2014, passed by the learned Sr. Civil Judge, Aizawl, in Civil Suit No. 78/2009, and the decree dated 29.05.2014 drawn therein. 2. Heard Mr. Zochhuana, learned counsel for the appellant and also heard Mr. J.C Lalnunsanga, learned counsel appearing on behalf of the respondent No.1 and Mr. Rosangzuala Ralte, learned Govt. Advocate appearing for the respondents No. 3 to 6. 3. The brief facts of the case as submitted by the learned counsel are as follows; The appellant inherited a plot of land under the LSC No. 566/1992, located at Bawngkawn, Aizawl, and the building standing therein from her father namely, late Lalpuithanga. In the year 2009, the suit land was mutated in the name of the respondent No.1. The appellant challenged the same before the Civil Court by filing the Civil Suit No. 78/2009. In that suit, the respondent No.1 and the other respondents No. 3 to 6 were arrayed as the defendants. After the written statement were filed by the defendants, the following issues were framed; (i). Whether the suit land is maintainable in its present form and style. (ii). Whether the plaintiff has cause of action against the defendants or not. (iii). Whether the suit is barred by law of limitation or not. (iv). Whether the plaintiff is entitled to the relief claimed or not, if so, to what extent. After the above stated issues were framed, the appellant/plaintiff and the respondent No.1 examined their respective witnesses and also exhibited the document in support of their respective case. There depositions of the witnesses were recorded and the learned Trial Court heard the parties and passed the judgment and decree which are impugned herein. The operative portions of the judgment and decree are reproduced here below; "12. On going through the entire evidences of the rival parties and also taking into consideration the relevant documents available on record, it is evident that the plaintiff and her husband, V.Lalkunga (defendant No.2) has taken a loan of Rs. 20,00,000/- from the defendant No.1, V.Zaliana in presence of reliable witnesses namely, Vanlalruata and Sangthanga. On going through the entire evidences of the rival parties and also taking into consideration the relevant documents available on record, it is evident that the plaintiff and her husband, V.Lalkunga (defendant No.2) has taken a loan of Rs. 20,00,000/- from the defendant No.1, V.Zaliana in presence of reliable witnesses namely, Vanlalruata and Sangthanga. Although the plaintiff has tried her level best to give the impression that the loan taken by her husband from V.Zaliana by mortgaging LSC No. Azl-566 of 1992 was without knowledge and consent, it can be clearly seen from the deposition of the defendant No.1, V.Lalkunga who is the legal and lawful husband of the plaintiff, at least, at the relevant time of incident that he and his wife, Laltanpuii went to the residence of Mr. Vanlalruata for taking a loan of money and they requested him to find someone who can give loan by mortgaging LSC No. Azl-566 of 1992. The defendant No.2 also admitted the fact that Mr. Vanlalruata was present when he and his wife took money from the defendant No.1 (Defendant No.1 hnen atanga pawisa in lak chhuah lai hian Vanlalruata a awn ve tih hi a dik). Regarding the HMUN INLEINA LEHKHA (Ext.D1-2) exhibited by the defendant No.1, it is an admitted fact that it may not be acceptable in the eye of law. This is, however, actually a prescribed form provided by the Revenue Authorities for sale of immovable property. Whoever is selling his landed property has no choice but to obtain a copy of the said Form and submit after duly filled up and signed by the parties and their witnesses. Buyers or sellers have no option but to abide by the instructions of the competent authorities. Besides this, the plaintiff and the defendant No. 2, V.Laikunga are husband and wife at the relevant time of incident. In my considered opinion, the plaintiff and her husband (Defendant No.2, V.Lalkunga) have conspired together and pretended to divorce each other so as to avoid liabilities and responsibilities arising out of the loan taken by them from the defendant No.1 and filed the instant suit with mala fide intention against the interest of justice. Situated thus, the plaintiff is not entitled to the reliefs claimed by her and the Issue No. (d) is decided against the plaintiff. Situated thus, the plaintiff is not entitled to the reliefs claimed by her and the Issue No. (d) is decided against the plaintiff. On careful perusal of the evidences of the rival parties and relevant materials available on records, it has been revealed that the plaintiff and her husband, V.Lalkunga (defendant No.2) have borrowed Rs. 20,00,000/- (Rupees twenty lakhs) only from the defendant No.1, V. Zaliana by mortgaging their LSC No. Azl-566 of 1992. The main purpose of filing the instant suit is to avoid payment of loan amounting to Rs. 20,00,000/- with interest @ 10% per annum. Both the parties have apparently admitted the fact that Rs. 2,00,000/- have already been paid to the defendant No.1 at the time of taking the said loan. However, the plaintiff shall not be allowed to escape from making payment of the said loan with interest to the defendant No.1 which she and her husband, V.Lalkunga have actually taken from the defendant No.1 before reliable witnesses. It may also be pertinent to mention herewith the fact that the land and building covered by LSC No.Azl-566 of 1992 could possibly carry a market value of Rs. 80 to 100 lakhs cannot be allowed to be forfeited just for Rs. 20,00,000/- 4. That the defendant No.1, V.Zaliana shall hand over LSC No. Azl-566 of 1992 to the Plaintiff, Laltanpuii on payment of loan amounting to Rs. 20,00,000/- with interest @ 9% per annum w.e.f. 24.02.2009 till realization. Thereafter, the defendant No.3 to 6 shall get the ownership transferred in the name of the plaintiff, Laltanpuii on production of a copy of this judgment and order. The entire process shall be completed within a period of six months from the date of this order. If the plaintiff is unable to clear her debts as directed, the suit land and building covered by LSC No.Azl-566 of 1992 shall be sold on auction. 5. With the above, the instant civil suit is disposed of. Considering the facts and circumstances of the case, mala fide intention of the plaintiff in making abortive attempt to avoid making payment of the loan she has taken and unnecessarily dragging the defendant No.1 to the Court for no fault of him, the plaintiff is liable to pay the costs of the suit which is quantified as Rs. 40,000/- and it shall be paid to the defendants No.1 through the Court. 40,000/- and it shall be paid to the defendants No.1 through the Court. Given copy of the parties through their respective counsels. Given under my hand and seal of this Court on this day the 28th day of May, 2014 in my open Court." 6. Being aggrieved by the said judgment and decree, the appellant has filed the present appeal and challenged the same on the following grounds (grounds reproduced verbatim as given in the appeal); "(a) For that the learned Trial Court has err in law and in facts. As such, the same is liable to be set aside and quashed. (b) For that the learned Trial Court erred in giving relief to the respondent No.1 in the absence of any counter claim made by him during the course of the trial. (c) For that the borrower i.e. the respondent No.2 should be directed to repay the loan if it is presumed that the said loan was taken from the respondent No.1. (d) For that the LSC of the appellant was transferred and mutated in the name of the respondent No.1 on basis of fabricated and forged signatures of the appellant. In fact, the respondents had not been careful enough in there action while fabricating the requisite documents prescribed by the concerned authorities for transfer and mutation of LSC documents. Moreover, the appellant did not signed the "Application for transfer of ownership of LSC (HMINGTHLAK DILNA)' and the alleged signature of the appellant on the said document was not her signature but was a forged signature made by the respondent No. 1 and 2. (e) For that on careful perusal of the alleged 'Hmun inleihna lehkha' it can be seen that the suit land was purported to have been sold by the appellant to the respondent No. 1 on 24.02.2009. However, there is no signature of the LSC holder i.e. Smit Laltangpuii and that the respondent No.1 and the VCP of Bawngkawn had already signed the same on 23.02.2009 and moreover, the said document had earlier been signed on 22.02.2009 by one of the witnesses namely Shri. V.Lalkunga who is the respondent No.2 herein. This clearly indicated that the transfer and mutation of the LSC in the name of the respondent No.1 was illegally done by the respondent on the mala-fide intention of the respondent No.1 & 2 and without knowledge and consent of the appellant. This clearly indicated that the transfer and mutation of the LSC in the name of the respondent No.1 was illegally done by the respondent on the mala-fide intention of the respondent No.1 & 2 and without knowledge and consent of the appellant. Hence, the action of the respondents in transferring the LSC cannot be accepted in the eye of law and the same cannot stands the scrutiny of law. (f) For that even if it is presumed but not admitted that the appellant took a loan from the respondent No.1 on 26.02.2009 to be repaid on 20.07.2009 there is no question of submitting application for transfer of the mortgaged LSC either on 22.02.2009 or 23.02.2009 or 24.02.2009 prior to the taking of loan and that question of transferring the LSC on 25.02.2009 by the appellant to the respondent No.1 did not arise. (g) For that the appellant did not signed the alleged 'INTIAMKAMNA (PROMISE LETTER)' dated 25.02.2009 and that Shri. Lalhmuaka and Keddy Laltanpuia who were shown to be the sons of the appellant are not her sons. Presuming but not admitting that the appellant took a loan of Rs. 20,00,000/- on 25.02.2009 as reflected in the alleged 'INTIAMKAMNA' question of executing sale letter (HMUN INLEINA LEHKHA) dated 24.02.2009 by the appellant did not arise. This clearly revealed that the 'INTIAMKAMNA' dated 25.02.2009 is nothing but only a fabricated and forged document made by the respondent No. 1 & 2 in trying to achieve their illegal and shameful intention to snatch away the property of the appellant. (h) For that the entire case of the respondents/defendants and all the documents relied upon them are hit by the Usurious Loan Act, the Registration Act and the Indian Stamp Act r/w Mizoram Stamp Amendment Act. In such a case, question of passing the impugned judgment and decree in favour of the respondents does not arise. (i) For that the facts and circumstances aforementioned and the grounds set forth are good grounds which call for interference of this Hon'ble Court". 4. The case of the appellant as submitted by her learned counsel, Mr. Zochhuana is that the mutation was done behind her back and without her knowledge and she never put her signature in the mutation paper, therefore, the mutation is illegal and deserves to be quashed and set aside. 4. The case of the appellant as submitted by her learned counsel, Mr. Zochhuana is that the mutation was done behind her back and without her knowledge and she never put her signature in the mutation paper, therefore, the mutation is illegal and deserves to be quashed and set aside. Secondly, the mortgage deed dated 25.02.2009, which was Exhibited as P-8 in the Trial Court was never signed by her and her purported signature on the same was forged. Thirdly, that the suit land and the property standing therein was never transferred by her to the respondent No.1 in any way as it was made to appear in the sale letter as Exhibited P-2. Lastly, that the mortgage deed was not registered and stamp as required under section-17 1(b) of the Indian Registration Act, 1908. Therefore, it is not a legally valid document which can be acted upon. The learned counsel further submitted that the so called mortgage deed was not stamped as required under section-15 of the Indian Stamp (Mizoram Amendment Act), 1996. Therefore, it is not a valid document at all even if it is assumed that it was executed by the appellant. The learned counsel further submitted that un-stamp and un-registered document cannot be accepted as legally valid document. In support of his submission, the learned counsel cited the judgment of this High Court passed in the case of Sanglura Sailo versus- C.Lalrampari, (2013) 2 GauLT 274 , paragraphs- 22 to 29. The next case cited by the learned counsel in support of his submission is the judgment cited in the judgment of the Hon'ble Supreme Court in the case of Jupudi Kesava Rao -versus- Pulavarthi Venkata Subbarao & Others, reported in 1971 (1) SCC 545 , para-19. The contents of the two judgments cited by the learned counsel are reproduced here below one after the other as follows; (i). Sanglura Sailo versus- C.Lalrampari. "22. Under the Indian Stamp (Mizoram Amendment) Act, 1996, in the case of sale of immovable property whose valuation exceeds Rs. 10,00,000/- stamp duty of Rs. 47,500/- plus 10 percent of the value above Rs. 10,00,000/- is required to be paid. 23. Having notice the legal position as indicated above, let us again examine the 2(two) crucial documents in question, one dated 23.07.2007 and the other dated 24.07.2007, which have been discussed in the proceeding paragraph 19 of the some detail. 10,00,000/- stamp duty of Rs. 47,500/- plus 10 percent of the value above Rs. 10,00,000/- is required to be paid. 23. Having notice the legal position as indicated above, let us again examine the 2(two) crucial documents in question, one dated 23.07.2007 and the other dated 24.07.2007, which have been discussed in the proceeding paragraph 19 of the some detail. The document dated 23.07.2007 is admittedly not registered. No stamp duty has been paid thereon. As already stated, possession of the property was also not handed over to the plaintiff. In so far the document dated 24.07.2007 is concerned, though it is shown to have been registered, the registration is clearly beyond the period prescribed under section 23 and 25 of the Registration Act, 1908. The Deed was executed on 24.07.2007 and registration was done on 01.07.2008, that is, after almost 1(one) year. As per the aforesaid provisions, a document for registration can be accepted within 4(four) months from the date of execution and in exceptional cases, the aforesaid period of 4(four) months can be extended for a further period of 4(four) months, that is, for a total of 8(eight) months. In the present case, it is clearly beyond even the extended period of 8 months. Therefore, the said document dated 24.07.2007 cannot be said to have been validly registered. No stamp duty was also paid along with the said document and as already noticed, possession was also not handed over to the plaintiff. 24. The plaintiff in her evidence only stated that the Revenue authorities had mutate her name in respect of LSC No. 110 of 1976 on 24.07.2007 i.e. within one day of the presentation of the deed dated 23.07.2007, which only goes to show the total non-application of mind on the part of the Revenue authorities. On the strength of the 2(two) documents, grant of mutation and failure of the defendant to pay Rs. 15,00,000/- with the stipulated interest as per the buy back clause, plaintiff claimed title over the said land and building. 25. In State of Orissa & Ors. Vs. Brundaban Sharma & Another, Hon'ble Supreme Court held that a non-est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage. 26. 25. In State of Orissa & Ors. Vs. Brundaban Sharma & Another, Hon'ble Supreme Court held that a non-est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage. 26. In the case of State of U.P. vs. Amar Singh & Ors, Apex Court reiterated the settled law that mutations entries are only for the purpose of enabling the State to collect land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per the Stamp Act and registered under the Registration Act. 27. In Bondar Singh & Ors. Vs. Nihal Singh & Ors., Hon'ble Supreme Court clearly held that under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. 28. In Meghmala & Ors. Vs. G. Narismha Reddy & Ors., the Apex Court again stated in clear terms that it is settled legal proposition that an agreement to sell does not create any right, or title in favour of the intending buyer. 29. The legal position, as directed above, has been aptly summarized by the Hon'ble Supreme Court in the case of Suraj Lamp and Industries Private Limited , wherein the Apex Court has held as under; "18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. 19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter. (ii). Jupudi Kesava Rao -versus- Pulavarthi Venkata Subbarao & Others. "19. In Thaji Beebi's case the plaintiff sued upon a "cadjan" mortgage which was said to be, in possession of the first defendant whose ancestors were alleged to have created the mortgage in favour of the plaintiffs' ancestors. The first defendant denied tile existence of any such deed. The plaintiff examined two witnesses to prove the mortgage one of whom stated that he had attested the document which was unstamped. Plaintiffs led oral evidence to prove the mortgage and also put in a petition by the first defendant's ancestor in which the mortgage was admitted. No objection was taken by the defendants to the reception of the secondary evidence. The trial court found the mortgage proved but dismissed the suit on the defendants' plea that the plaintiffs' ancestors had sold away the lands. On appeal the District Judge upheld the decision on the ground that the trial court ought not to have received secondary evidence of the mortgage. The High Court dismissed the Second Appeal on the same ground. The question as to whether it was open to. the plaintiff to rely on the oral evidence of the alleged execution of the instrument and the alleged passing of possession of the property under that instrument in order to show that that possession operated to create by prescription only the title of a mortgage in the defendants, was answered in the negative by observing : "To hold otherwise would be to give some effect to the unstamped instrument inasmuch as it would necessary connect the possession with the contents of the document relating thereto; and that would be contrary to the express provisions of section 35 of the Stamp Act which lays down that an instrument chargeable with duty shall not only not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, but also that it shall not be "acted upon" by any such person unless duly stamped." 5. The learned counsel for the respondent No.1 submitted that the appellant and her husband i.e. the respondent No.2 had borrowed a sum of Rs. 20,00,000/- from the respondent No.1 by mortgaging the landed property in dispute by executing a valid mortgage deed wherein, the appellant put her signature in presence of the witnesses, therefore, the mutation of names in the record of the land in dispute which was done on the basis of this mortgage deed is valid as per law. The learned counsel also submitted that the mutation was also done based on the sale letter Exhibit-3 and also by following the procedure prescribed for mutation, therefore, the same is valid in law however, since the learned Trial Court has found the transfer not valid and had directed that the same be transferred back, the respondents has no grievance over it but the money borrowed by the appellant along with interest as directed by the Civil Court in the judgment which has been rightly passed ought to be given by the appellant. The learned counsel further submitted that assuming but not admitting that the mortgage deed is not valid in the eye of law since there are oral evidence proving that the appellant had taken the money from the respondent No.1, he is liable to pay back the money with interest. The learned counsel referred to the signature of the appellant in the mortgage deed which was Exhibited-P(A) and submitted that the same was identified by the two witnesses who also signed in the mortgage deed. The learned counsel also submitted that the two witnesses had stated in their evidence that the appellant had signed in the mortgage deed. The learned counsel thereafter, referring to the statement of the respondent No.2 recorded in the Trial Court, particularly his answer during the cross-examination conducted by the learned counsel of the respondent No.1 and submitted that the statement of the respondent No.2 shows that he had gone to the residence of the respondent No.1 with the appellant for borrowing the money. The learned counsel further submitted that this collaborates the evidence given by the two witnesses namely, Vanlalruata and Sangthanga that the money was handed over to the appellant. Lastly, the learned counsel submitted that unregistered documents can be accepted as evidence for collateral purpose. The learned counsel further submitted that this collaborates the evidence given by the two witnesses namely, Vanlalruata and Sangthanga that the money was handed over to the appellant. Lastly, the learned counsel submitted that unregistered documents can be accepted as evidence for collateral purpose. In support of his submission, the learned counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of S.Kaladevi -versus- V.R. Somasundaram & Others, (2010) 5 SCC 401 , para-17. The contents of the para-17 of the judgment are extracted here below; "17. The argument of learned Counsel for the respondents with regard to Section 3(b) of 1963 Act is noted to be rejected. We fail to understand how the said provision helps the respondents as the said provision provides that nothing in 1963 Act shall be deemed to affect the operation of 1908 Act, on documents. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with proviso appended to Section 49 of 1908 Act". 6. The learned Government Advocate appearing for the State respondents submitted that mutation was done as per the prescribed form on the basis of the sale letter Exhibited-2 & 3. Therefore, no illegality was committed by the State respondents. 7. The two pleas made by the appellant are that; (i). The transfer of the land and building of the appellant to the respondent No.1 could not have been effected since the mortgage deed and sale deed which were the basis for having done the same were not stamped and registered as required by the law. (ii). That the impugned judgment and decree directing the plaintiff to return the sum of Rs. 20,00,000/- with interest to the respondent No.1 has no valid documentary evidence in support, therefore, the same has to be quashed and set aside. The respondent No.1 has opposed only the second plea of the appellant, therefore, in this judgment I will confine only to that plea. 20,00,000/- with interest to the respondent No.1 has no valid documentary evidence in support, therefore, the same has to be quashed and set aside. The respondent No.1 has opposed only the second plea of the appellant, therefore, in this judgment I will confine only to that plea. In the original suit, the case of the plaintiff i.e. the appellant in this case was that the respondents based on un-registered sale deed and mortgage deed had mutated the name of the respondent No.1 in place of her name in the record of the disputed land/property which is illegal, therefore, let a decree declaring that the transfer of the landed property is null and void and also that the plaintiff is not liable to pay any money to the defendant No.1 i.e. the respondent No.1 in this appeal be passed. The respondent No.1 contested the suit stating that the sum of Rs. 20,00,000/- was borrowed by the appellant with her husband by mortgaging the disputed land/property and by signing a mortgage deed and the sale deed in the presence of the witnesses. In view of the contending pleas or claims of the parties, the learned Sr. Civil Judge had framed 4(four) issues and one of them was as follows; "Whether the plaintiff is entitled to the relief claim or not, if so to what extent." Under this issue, the learned Sr. Civil Judge had discussed the claims of the parties based on the evidence given by them. After appreciation of the evidence given by the parties, the learned Sr. Civil Judge came to the conclusion that the appellant did take the loan of Rs. 20,00,000/- from the respondent No.1 with her husband in front of witnesses, therefore, the appellant is liable to return the money with interest. However, the learned Sr. Civil Judge considering the value of the property which in his opinion is much higher than the sum of money to be returned by the respondent No.1, it was directed that the same be transferred back to the appellant. In view of the above, the plea of Mr. Zochhuana, learned counsel for the appellant that the judgment and decree was passed without specific plea or counter claim of the respondent No.1 is found to be without any basis. In view of the above, the plea of Mr. Zochhuana, learned counsel for the appellant that the judgment and decree was passed without specific plea or counter claim of the respondent No.1 is found to be without any basis. The borrowing of money by the appellant from the respondent No.1 and signing of a mortgage deed were very much part and parcel of the claim of the plaintiff and response of the respondent No.1, therefore, the learned Sr. Civil Judge under the above stated issue had discussed the same in detail by taking into account the evidence supplied by the parties and decided the same. It is true as submitted by the learned counsel of the appellant a mortgage deed and a sale deed relating to an immovable property which has value of Rs. 100/- and above are required to be stamped and registered, therefore, as per the relevant laws i.e. Indian Registration Act, 1908 and Indian Stamp (Mizoram Amendment) Act, 1996, the transfer of the property of the appellant to the respondent No.1 on the basis of un-registered sale deed and mortgage deed cannot be valid. However, submission of the learned counsel of the respondent No.1, Mr. J.C. Lalnunsanga that such un-registered sale deed and mortgage deed has evidential value for collateral purpose is also equally right as per the settled principle of law. Therefore, they can be taken as evidence for the purpose of ascertaining whether a loan of Rs. 20,00,000/- was taken by the appellant and her husband. Since, the two witnesses who signed on the deed have deposed so strongly and since their evidence have not been discredited or refuted successfully, I find nothing wrong in the finding and conclusion drawn by the learned Sr. Civil Judge. In view of the above, the transfer/mutation of the disputed land and property in the name of the respondent No.1 are declare null and void but the judgment and order, and the decree directing the appellant to pay the sum of Rs. 20,00,000/- with interest @ 9% p.a with w.e.f. 24.02.2009 till realization is upheld. The appeal is disposed of. Registry is directed to prepare the decree accordingly. Send back the LCR forthwith.