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2018 DIGILAW 3516 (MAD)

Kasthuri Ammal v. Usha D/o Vinayagam

2018-10-04

P.T.ASHA

body2018
JUDGMENT P.T. Asha, J. The above Civil Revision Petition is filed challenging the judgment and decree in A.S.No.12 of 2003 on the file of the Principal Subordinate Judge, Tiruvannamalai in and by which the learned Judge has confirmed the judgment and decree of the learned Additional District Munsif Court No.1, Thiruvannamalai in O.S.No.786 of 1982. The 2nd defendant is the revision petitioner in the above Civil Revision Petition and she was the 2nd defendant in the suit O.S.No.786 of 1982. 2. The suit O.S.No.786 of 1982 was filed by Seshammal and Vinayagam. The respondents 1 to 4 herein are the wife and children of the said Vinayagam. It is the case of the said Seshammal and Vinayagam that the husband of the revision petitioner one Manivannan had borrowed a sum of Rs. 3,000/- from them and as a security had mortgaged the schedule property under registered deed dated 11.03.1970. The said Manivannan had died nine years prior to the filing of the suit and therefore the suit was filed against the legal representatives of the deceased Manivannan. The plaintiffs had also contended that a portion of the mortgaged properties was sold to one Muthulakshmi Ammal by the said Manivannan and respondents 4 to 6 herein who were defendants 3 to 5 are their legal representatives. They had contended that the consideration for the mortgage deed was a sum of Rs. 50/- to said Manivannan on the date of execution of the deed and the remaining amounts constituted the payment that were payable to various creditors of the said Manivannan since these debts were not cleared by the said Manivannan. 3. Since no payments were made towards the mortgage debt, the plaintiffs had come forward with the present suit. Pending the suit, the plaintiffs Seshammal and Vinayagam died and the respondents 1 to 5 herein were brought on record as their legal representatives. 4. The revision petitioner had filed a detailed written statement in which she had contended that the mortgage deed was not supported by the consideration since none of the debts detailed in the mortgage deed was discharged by the plaintiffs. It was the revision petitioner who had discharged these loans therefore, the revision petitioner had contended that no amounts were payable to the respondents 1 to 5 herein to the plaintiff in the suit. She had also pleaded that the mortgage deed was not supported by consideration. It was the revision petitioner who had discharged these loans therefore, the revision petitioner had contended that no amounts were payable to the respondents 1 to 5 herein to the plaintiff in the suit. She had also pleaded that the mortgage deed was not supported by consideration. They had also pleaded the benefits of Act 13 of 80 and 9 of 83, the written statement was filed by the respondents 5 and 6 herein adopting the main contentions of the revision petitioner. 5. The 4th respondent had entered the box and adduced evidence as PW.1 and had examined one Devaraj as PW.2. The mortgage deed 11.03.1970 was marked as Ex.A.1 and the partition deed between Devaraja Udaiyar and two others were marked as Ex.A.2. On the side of the defendants, there is no oral or documentary evidence. 6. One of the issues that was raised was whether the mortgage deed was not supported by consideration of Rs. 2,950/-besides other issues. The trial Court held that the execution of the mortgage deed have been admitted by the defendants and therefore since the same is valid the defendants are liable to pay the money. The trial Court has also observed that it is for the defendants to prove that the debts mentioned in the mortgage deed had not been discharged by the mortgagee and since the revision petitioner has not proved the same it is presumed that the plaintiff had discharged them. The suit was therefore decreed. This Judgement and decree was taken up on appeal to the learned Principal Subordinate Judge, Tiruvannamalai in A.S.No.12 of 2003. The learned Subordinate Judge has also proceeded on the same lines as the trial Court and dismissed the appeal. Since the value of the appeal is less than Rs. 10,000/-, the revision petitioner has challenged the Judgment and decree in A.S.No.12 of 2003 by way of this Civil Revision Petition. 7. Heard Mr. P.Mani appearing on behalf of the Revision Petitioner and Mr. T.Dhanasekaran appearing for the respondents 1 to 4. 8. The learned counsel for the petitioner would argue that the Courts below have erred in casting the onus on the defendants for proving the factum that the plaintiff had not discharged the various debts listed in the mortgage deed Ex.A.1. P.Mani appearing on behalf of the Revision Petitioner and Mr. T.Dhanasekaran appearing for the respondents 1 to 4. 8. The learned counsel for the petitioner would argue that the Courts below have erred in casting the onus on the defendants for proving the factum that the plaintiff had not discharged the various debts listed in the mortgage deed Ex.A.1. He would further argue that the Courts below have proceeded on a presumption that the debts have been discharged by the deceased plaintiffs and therefore the judgment of the Courts below deserves to be set aside. 9. Mr.T.Dhanasekaran appearing on behalf of the respondent would submit that having admitted the execution of the mortgage deed, it is for the defendants to prove that the same is not supported by the consideration and it is on this basis that the Courts below have decreed that suit and he argued that no exception can be taken to this judgment and decree. 10. Heard the submissions of both the counsels and perused the evidence and pleadings. 11. This Court is passing the following order:- The plaintiff has come forward with a very specific plea in paragraph 3 of the plaint which reads as follows:- "The mortgagor has directed the mortgagee to discharge a mortgage debt of Rs. 600/- due by him to one Aneef Rowther to discharge two pro-note debts to the tune of Rs. 1,100/- due by him to one Gundu (Alias) Lagirdu, another pro-note debt of Rs. 750/- due by him to one Govinda Pillai, another pro-note debt of Rs. 500/- due by him to one Ramasamy Pillai in all Rs. 2,950/- in and by the mortgage deed and received the balance of Rs. 50/- in cash. The plaintiff, mortgagee has discharged all the debts undertaken by him to discharge and the mortgage deed is fully supported by consideration. The mortgage deed is duly executed, attested and registered". 12. Therefore, it is the case of the plaintiff, which is reflected in Ex.A.1 that the sum of Rs. 3,000/- which constituted the consideration for mortgage has been split into a sum of Rs. 50/- which was paid in cash to the mortgagor and the balance of Rs. 2,950/- was to be paid in the following manner:- (i). A sum of Rs. 600/- was payable to Aneef Rowther. (ii). A sum of Rs. 1,100/- was payable to Gundu @ Lagirdu. (iii). 50/- which was paid in cash to the mortgagor and the balance of Rs. 2,950/- was to be paid in the following manner:- (i). A sum of Rs. 600/- was payable to Aneef Rowther. (ii). A sum of Rs. 1,100/- was payable to Gundu @ Lagirdu. (iii). A sum of Rs. 750/- was payable to Govinda Pillai. (iv). A sum of Rs. 500/- was payable to Ramasamy Naidu. 13. These loans were to be discharged by the plaintiff which means that on the day of the execution of the mortgage deed only a sum of Rs. 50/- was paid to the mortgagor namely Manivannan Pillai. Therefore, the mortgage deed will be considered to be supported by consideration only upon the plaintiff discharging the aforementioned debts. A perusal of the pleadings would show that the plaintiffs have stated that the debts have been discharged however, not a shred of documentary evidence has been produced on the side of the plaintiff to show that each of the aforesaid creditors had been paid and their debt discharged. 14. In the absence of such an evidence, both the Courts below have erred in assuming the discharge only on the basis that the execution of the document has been admitted by the defendants and therefore, burden would shift on the defendants to prove non-discharge. This is not a case where the execution of the mortgage deed and the payment of consideration was contemporaneous. In this case, the payment was to take place at a future date and only upon the payment being effected, the mortgage deed would be deemed to be coupled with consideration. The plaintiff has failed to prove the same. PW.1 in his cross examination would submit that the money was given to his uncle by his mother to discharge the loans which has been detailed in Ex.A.1 and there is no further evidence to show that the money which had been given to the uncle and had been used to discharge the loans. He would also admit that in case, the loans had been discharged, the original bonds/promissory notes should be in their possession but such a document has not been produced on the side of the plaintiff. All these leads to the irresistible conclusion that Ex.A.1 mortgage deed is not supported by consideration and therefore the judgment and decree of the Courts below are liable to be set aside. 15. All these leads to the irresistible conclusion that Ex.A.1 mortgage deed is not supported by consideration and therefore the judgment and decree of the Courts below are liable to be set aside. 15. In the result, the Civil Revision Petition is allowed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is also closed.