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2018 DIGILAW 2887 (MAD)

Abraham @ Daveed Nadar (Died) v. Santhakumar

2018-09-12

C.V.KARTHIKEYAN

body2018
JUDGMENT 1. This appeal had been filed by the plaintiff in O.S. No. 42 of 1993 on the file of the Additional District Munsif Court, Tuticorin. 2. O.S. No. 42 of 1993 had been filed by Abraham @ Daveed Nadar against Santhakumar, seeking a decree of declaration that the plaintiff, as a debtor, is entitled to the benefit of Tamil Nadu Act-4/38 as amended by Act 8/73, Act 40/79 and Act 13/80 and that the usufructuary mortgage dated 01.07.1965 in respect of the schedule property had been discharged and also for recovery of possession. 3. The schedule property is the land measuring 17 cents out of 34 cents in S. No. 98/2A in Perungulam Village, Tuticorin. According to the plaintiff, the property originally belonged to Paulraj and Samraj Nadar. They created a usufructuary mortgage in favour of Bathrakaliammal on 01.07.1965 in consideration of a sum of Rs. 1,300/-. Pathrakaliammal was put in possession of the property. On 06.04.1985, she assigned the mortgage in favour of the defendant for the same amount. The defendant is in possession of the property. The plaintiff purchased the property with the right of redemption from Paulraj and Samraj Nadar on 20.03.1969. The plaintiff claimed to be a debtor and sought protection under Tamil Nadu Debt Relief Act. Since the defendant had been evading to hand over possession of the property to the plaintiff, the suit had been filed seeking a declaration that the plaintiff is entitled to the benefit of Tamil Nadu Debt Relief Act and for recovery of possession. 4. The defendant filed written statement. In the written statement, it had been stated that the four sons of Yovan Joseph Nadar were entitled to undivided 1/4th share in the property. The defendant disputed the averment that the plaintiff had purchased the property with right of redemption. After the death of Yovan Joseph Nadar, his four sons were together jointly entitled to 34 cents of land. The defendant is the son of one of the sons of Yovan Joseph Nadar. The plaintiff would be entitled to only an undivided one half share in the 34 cents. It had been stated that the claim of the plaintiff that the he was entitled to the benefit of Tamil Nadu Debt Relief Act, is not sustainable in law. The defendant is the son of one of the sons of Yovan Joseph Nadar. The plaintiff would be entitled to only an undivided one half share in the 34 cents. It had been stated that the claim of the plaintiff that the he was entitled to the benefit of Tamil Nadu Debt Relief Act, is not sustainable in law. It had been stated that the plaintiff has means and also onus owns other properties and consequently cannot be termed as a debtor. It had also been stated that the suit is barred by limitation. It had been further stated that the suit should be dismissed. 5. The defendant also filed an additional written statement, in which he specifically averred that the suit is barred by limitation, since it had been instituted after 12 years from 01.07.1975. 6. On the basis of the rival pleadings, the learned Additional District Munsif framed the following issues for trial: "(a) Whether the plaintiff is entitled to the relief under the Tamil Nadu Debt Relief Act. (b) Whether the plaintiff is entitled to the relief of redemption of mortgage. (c) Whether the suit is barred by limitation. (d) Whether the suit is barred for non-joinder of necessary parties. (e) To what other reliefs, the plaintiff is entitled to." 7. During trial, the plaintiff was examined as PW-1 and another witness was examined as PW-2. The defendant was examined as DW-1. The plaintiff marked Ex-A1 to Ex-A5. The usufructuary mortgage deed executed in favour of Pathrakaliammal, dated 01.07.1965 was marked as Ex-A3. The made over document dated 06.04.1985 of the mortgage in favour of the defendant has been marked as Ex-A3. The sale deed in favour of the plaintiff dated 20.03.1969 was marked as Ex-A5. On the side of the defendant, the original mortgage deed dated 01.07.1965 was marked as Ex-B1. The original made over document dated 06.04.1985 was marked as Ex-B2. The title present deed of the document of the property was marked as Ex-B3. 8. On the basis of the oral and documentary evidence, the learned Additional District Munsif, by judgment dated 09.11.1994 held that the suit is barred by limitation. He held that the suit should have been filed within a period of 12 years from 01.07.1975. The suit was not filed within the said period. He therefore, held that the plaintiff was not entitled for redemption of mortgage. He held that the suit should have been filed within a period of 12 years from 01.07.1975. The suit was not filed within the said period. He therefore, held that the plaintiff was not entitled for redemption of mortgage. The learned Judge also held that the suit was also bad for non- joinder of necessary parties. In effect, the suit was dismissed. 9. The plaintiff then filed A.S. No. 41 of 1995 which came up for consideration before the Principal District Court, Tuticorin. By judgment dated 26.02.1998, the learned Principal District Judge, framed points for consideration and in particular, he also framed points with respect to limitation. He also re-examined the evidence on record and held that the plaintiff is a debtor under the Tamil Nadu Debt Relief Act. However, the learned Principal District Judge concurred with the view of the learned Additional District Munsif in holding that the suit is barred by limitation. He also found that the suit is bad for non-joinder of necessary parties. On these grounds, the appeal suit was dismissed. Challenging the said dismissal order, the plaintiff had filed the present second appeal. 10. At the time of admission of the second appeal on 11.06.2001, the following substantial question of law was framed: "Whether the Courts below were in error in finding that the suit for redemption and recovery of only half of extent of the property covered under the mortgage was not maintainable so long as the property was relatable to the specific allotment to his vendors and the fact that the suit did not include the remaining half extent was immaterial in view of the statutory discharge of mortgage to the said extent." 11. On 11.09.2014, the following further substantial questions of law were also framed: "(1) Whether the Courts below did not err in finding that by virtue of the statutory discharge of mortgage under Tamil Nadu Debt Relief Act 40 of 79, the mortgagor lost his right to redeem the mortgage beyond a period of 12 years, failing to note that the provision of the Limitation Act, failing to note that the provision of the Limitation Act for redemption of the mortgage under Article 61 of the Limitation Act could not be curtailed by any of the provisions of Limitation Act. (2) Whether the Courts below were not in error in finding that the suit for redemption and recovery of only half the extent of the property covered under the mortgage was not maintainable so long as the property was relatable to the specific allotment to his vendors and the fact that the suit did not include the remaining half extent was immaterial in view of the statutory discharge of mortgage to the said extent." 12. Heard arguments advanced by Mr. R. Vijayakumar, for Mr. D. Rajkumar, learned Counsel for the appellants and Mr. V. Meenakshisundaram, learned Counsel for the respondent. 13. During the pendency of the appeal, the appellant died and his son was impleaded as second appellant. The parties shall be referred as plaintiff and defendant. Though the legal heir of the original plaintiff is the appellant herein, still the term "plaintiff" is used to denote the appellant. The defendant is the respondent herein. 14. This appeal has been filed against the concurrent findings in O.S. No. 42 of 1993, dated 09.11.1994 and in A.S. No. 41 of 1995, dated 26.02.1998. Both the Courts negatived the relief of redemption of mortgage sought by the plaintiff. The suit property is to an extent of 17 cents out of a larger area of 34 cents in S. No. 98/2A in Perungulam Village, Tuticorin. The larger area of 34 cents was owned by Yovan Joseph Nadar. He had four sons, by name, Paulraj, Samraj, Manoj and Chelladurai. They were each entitled to un-devided 8.5 cents. Palraj and Samraj Nadar created an usufructuary mortgage with respect to their undivided 17 cents in favour of one Bathrakaliammal by document dated 01.07.1965. The copy of the said document had been produced as Ex-A3 and the original had been produced as Ex- B1. Bathrakaliammal made over the said usufructuary mortgage in favour of the defendant by endorsement dated 06.04.1965. Copy of this was marked as Ex-A4 and the original was marked as Ex-B2. The plaintiff purchased the property together with right of redemption of the mortgage by document dated 20.03.1969, which has been produced as Ex-A5. The plaintiff claimed that he is entitled to the benefit of Tamil Nadu Debt Relief Act and Act 40/1979. 15. Both the trial Court and the first appellate Court did not grant the relief of redemption to the plaintiff, since they held that the suit was barred by limitation. 16. The plaintiff claimed that he is entitled to the benefit of Tamil Nadu Debt Relief Act and Act 40/1979. 15. Both the trial Court and the first appellate Court did not grant the relief of redemption to the plaintiff, since they held that the suit was barred by limitation. 16. Section 3(2) of Tamil Nadu Debt Relief Act, 1979 (Act 40 of 1979) defines the word "debt" as follows: "Debt means any liability in cash or in kind, whether secured or unsecured and whether decreed or not, but does not include rent as defined in clause (d)." 17. This Act came into force on 15.07.1978. Section 9 deals with the special provision in respect of mortgage, the Explanation (5)(a) is as follows: "Where the mortgagee has been in possession of the whole of the property mortgaged to him for an aggregate period of ten years of more than, notwithstanding anything contained in Sections 8 and 12 the mortgagee, debt shall be deemed to have been wholly discharged with effect from the expiry of the period of ten years or where such period expired before the 14thday of July, 1978, with effect from the said date." 18. In the present case, there is no dispute with the fact that the property mortgaged, namely, undivided 17 cents originally belonged to Paulraj and Samraj Nadar. The further fact that usufructuary mortgage had been created in favour of Bathrakaliammal is also not disputed. The further fact that Bathrakaliammal had made over the usufructuary mortgage to the defendant is also not disputed. The fact that the defendant was in possession pursuant to such made over document is also not disputed. The further fact that the plaintiff had purchased the property together with right of redemption had been established during trial. Both the Courts have endorsed that fact. The only issue to be decided is whether the suit had been instituted within the period of limitation. The fact that the plaintiff was entitled to the relief under the Tamil Nadu Debt Relief Act had not been disputed. 19. The date of usufructuary mortgage was 01.07.1965. Pathrakalimmal, mortgagee, had made over the mortgage to the defendant by assignment dated 06.04.1985. The plaintiff had purchased the property with right of redemption of mortgage on 20.03.1979. The Tamil Nadu Debt Relief Act, 1979 came into effect on 15.07.1978. 19. The date of usufructuary mortgage was 01.07.1965. Pathrakalimmal, mortgagee, had made over the mortgage to the defendant by assignment dated 06.04.1985. The plaintiff had purchased the property with right of redemption of mortgage on 20.03.1979. The Tamil Nadu Debt Relief Act, 1979 came into effect on 15.07.1978. Under Explanation (5)(a) to Section 9, it had been provided that if the mortgagee, was in possession for an aggregate period of 10 years or more than, then the deed shall be deemed to have been wholly discharged with effect from the expiry of 10 years and when such period had expired before 14.07.1978, with effect from the said date. 20. In the present case, the mortgagee was in possession for more than 10 years. The period of 10 years expired before 14.07.1978. Consequently, the mortgage is deemed to have been discharged as on 14.07.1978 the date when Act 40 of 1979 came into effect. Under Article 61(a) of the Limitation Act, 1963, the period of limitation begins from the date, when the right to redeem starts. In this case, the right to redeem starts from the date when Act 40 of 1979 came into effect, namely, from 14.07.1978. The period of limitation is 30 years. The suit had been filed well within the period of limitation. 21. In a case of similar nature, Prabhakaran and others vs. M. Azhagiri Pillar and others, (2006) 4 SCC 484 , the Supreme Court was concerned with a case, wherein, an usufructuary mortgage was created on 07.09.1935. It was assigned on 12.02.1954. In a suit for redemption, the trial Court dismissed the suit on the ground that it was barred by limitation. The first appellate Court, however, found that the period to redeem the mortgage was 30 years from 12.02.1954 and consequently held the suit was not barred by limitation. This was taken up in second appeal before the Madras High Court, wherein, the suit was dismissed on the ground of limitation. The entire issue was re-examined by the Supreme court and it was held that under Article 61 of the Limitation Act, 1963, the suit should be instituted within 30 years and the period of limitation begins to run when the right to redeem or to recover possession accrues. It had been specifically given in para 13, as follows: "13. The entire issue was re-examined by the Supreme court and it was held that under Article 61 of the Limitation Act, 1963, the suit should be instituted within 30 years and the period of limitation begins to run when the right to redeem or to recover possession accrues. It had been specifically given in para 13, as follows: "13. Article 148 of the Limitation Act, 1908 (referred to as 'old Act') provided a limitation of 60 years for a suit against a mortgagee, to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 ('new Act' or 'Limitation Act' for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished". This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner." 22. It was, thereafter, held as follows in paragraph 21: "21. There is no difficulty in holding a statement to be an 'acknowledgement' under section 18, where the mortgagee makes a direct admission that he is liable to deliver back possession to the mortgagor or that the mortgagor has the right to redeem the property from the mortgage. But when there is no direct admission, but an acknowledgement is to be implied from an admission of jural relationship, we have noticed some confusion in the decisions rendered, as to what is an "admission of jural relationship". The term 'jural' means 'legal' or 'pertaining to rights and obligations'. But when there is no direct admission, but an acknowledgement is to be implied from an admission of jural relationship, we have noticed some confusion in the decisions rendered, as to what is an "admission of jural relationship". The term 'jural' means 'legal' or 'pertaining to rights and obligations'. 'Jural relationship between parties' means legal relationship between parties with reference to their rights and obligations. In a mortgage, both the mortgagor and the mortgagee, have certain rights and obligations against each other. The rights/obligations of a mortgagor or a mortgagee co-exist, like the two sides of a coin. The mortgagor's right of redemption is co-extensive with the mortgagee's right of sale or foreclosure (where such right is recognized in law). Any statement by either, admitting the jural relationship with the other, will extend the limitation for a suit by that other, against the person acknowledging. It follows that when a mortgagee makes a statement about his right to recover the mortgage amount, such statement impliedly acknowledges the corresponding right of redemption of the mortgagor. Further, a statement admitting jural relationship, need not refer to or reiterate the rights and obligations flowing therefrom. Where a party to the mortgage, by his statement, admits the existence of the mortgage or his rights under the mortgage, he admits all legal incidents of the mortgage including rights and obligations of both parties, that is mortgagee and mortgagor." 23. In paragraph 23, it was held as follows: "23. The contention ignores the purport and scope of Section 18 and proceeds on the assumption that an acknowledgement can be made only by a 'debtor' and there is no question of a 'creditor' making an acknowledgement. Section 18 of the Act deals not only with acknowledgement of debts, but acknowledgements with reference to all suits involving properties or rights for which limitation is prescribed under the Act. It sets out the circumstances in which a fresh period of limitation can be computed for a suit. If the suit is one for recovery of the amount due under an on-demand promissory note, no doubt, only an acknowledgement by the debtor can extend the period of limitation. But in regard to mortgages, T.P. Act has created and recognized rights as well as obligations both in the mortgagor and the mortgagee (vide Chapter IV of the Transfer of Property Act, in particular, Sections 60 and 67). But in regard to mortgages, T.P. Act has created and recognized rights as well as obligations both in the mortgagor and the mortgagee (vide Chapter IV of the Transfer of Property Act, in particular, Sections 60 and 67). Section 18 of the new Act provides that where before the expiry of the prescribed period for a suit in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. An acknowledgement under Section 18 can, therefore, be by a mortgagee also, and such acknowledgement will extend the limitation for a suit against the mortgagee in respect of the property or right claimed against him. 24. Finally, in paragraph 26, the period of limitation was calculated, and it was held as follows: "26. When the said deed of assignment was executed on 12.2.1954, the mortgage dated 7.9.1935 was subsisting, as the period of limitation at that time, was 60 years. In view of the admission of jural relationship contained in the assignment deed, operating as an acknowledgement of liability, a fresh period of limitation started from 12.2.1954. When the suit was filed on 16.11.1981, the new Limitation Act was in force under which the period of limitation was 30 years. When the 30 years period is computed from 12.2.1954, the suit filed in the year 1981 was clearly within limitation." 25. It was further held in paragraph 30, with specific reference to the Tamil Nadu Debt Relief Act, 1979 as follows: "27. While dealing with the first question, we have held that the period of limitation for the suit for redemption had to be reckoned from 12.2.1954 and not from 7.9.1935. Therefore, when the Debt Relief Act, came into force on 15.7.1978, the mortgage was very much subsisting. Section 9 of the Debt Relief Act contains special provisions in respect of mortgages. Sub-section (1) of section 9provides that the provisions of the said section applies to all mortgages executed at any time before 14.7.1978 and by virtue of which the mortgagee is in possession of the property mortgaged to him. Section 9 of the Debt Relief Act contains special provisions in respect of mortgages. Sub-section (1) of section 9provides that the provisions of the said section applies to all mortgages executed at any time before 14.7.1978 and by virtue of which the mortgagee is in possession of the property mortgaged to him. Sub-section (5) of section 9 provides that where the mortgagee has been in possession of the mortgaged property for an aggregate period of 10 years or more, then, the mortgage debt shall be deemed to have been wholly discharged with effect from expiry of the period of ten years or where such period expired before 14.7.1978, with effect from 14.7.1978. The said provision applies as the mortgage transaction does not fall under any of the exceptions enumerated in section 4 of the said Act. As the mortgagee and his successors were in possession of the mortgaged property ever since 7.9.1935, that is, for more than 10 years as on the date when the Act came into force, the said mortgage debt stood wholly discharged with effect from 14.7.1978." 26. The Supreme Court set aside the judgment of the High Court and decreed the suit. It was further held that the plaintiff would be entitled to a final decree for redemption without the need to undergo the formality of a preliminary decree and taking of an account of amount due under the mortgage. The principles enunciated applies with all force to the facts of the present case. 27. The instant suit filed within 30 years calculated from the date on which the Act-40 of 1979 came into effect as provided under Article 69 of the Limitation Act, 1963 and is well within the period of limitation. In the present case, it had been further contended by the defendant that the plaintiff was entitled only to an undivided 17 cents out of the larger area of 34 cents. It is held that the suit had been filed within the period of limitation and that the plaintiff shall be entitled to a decree for redemption with respect to undivided 17 cents out of the larger area of 34 cents. A final decree shall be drawn accordingly without the need to undergo the formality of a preliminary decree and taking of an account of amount due mortgage. A final decree shall be drawn accordingly without the need to undergo the formality of a preliminary decree and taking of an account of amount due mortgage. However, during the final decree proceedings, the larger area of 34 cents may be divided into metes and bounds by following due process and 17 cents may be allotted to the plaintiff. This procedure would be beneficial to all parties as they need not be driven to cost seeking partition and separate possession. 28. With the above observation, the second appeal is allowed. No Costs. The judgment and decree of the first appellate Court in A.S. No. 41 of 1995, dated 26.02.1998 and the judgment and decree in O.S. No. 42 of 1993, dated 09.11.1994 are both set aside and the suit is decreed.