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2019 DIGILAW 2198 (MAD)

Glory v. Murugan

2019-08-28

NISHA BANU

body2019
JUDGMENT : This second appeal has been filed by the appellants/plaintiffs in the suit against the concurrent judgment passed by the Courts below dismissing the suit. 2. For better appreciation and understanding, the parties are referred to as per their in rank in the suit. 3. The plaintiffs had filed the suit in O.S.No.22 of 2007 for the following reliefs; (a) declaration that the registered sale deed dated 13.08.2011 executed by the 2nd defendant in favour of the 1st defendant is only a mortgage deed; (b) declaration that the registered sale deed dated 26.09.2002 executed by the plaintiffs in favour of the 1st defendant is only a mortgage deed; (c) declaration that the registered sale deed dated 28.07.2006 executed by the 2nd plaintiff is only a mortgage deed; (d) permanent injunction restraining the 1st defendant from in any manner interfering with the peaceful possession and enjoyment of the schedule property. 4.0. It is the case of the plaintiffs that the suit property was purchased by Poolpandian, who is the husband of the 1st plaintiff and father of the 2nd plaintiff, 2nd defendant and 3rd defendant, through a registered sale deed – Ex.A1 dated 09.08.1983 and after his death in the year 1984, they have been in joint possession and enjoyment of the same as his legal heirs. For commencement of a business, the 2nd defendant needed money. The plaintiffs and the 2nd defendant approached the 1st defendant, who is a money lender, for a loan of Rs.1 lakh, for which the 1st defendant asked the plaintiffs, 2nd defendant and 3rd defendants to execute “Nambikkai Kirayam” as a security for repayment of loan. The 1st plaintiff executed a gift deed dated 12.06.2001 in respect of a portion of the suit schedule property in favour of the 2nd defendant, who in turn executed a sale deed dated 13.08.2001 in favour of the 1st defendant. The 1st defendant also got signatures of the family members in blank pro-notes, papers and stamped papers. At that time, there was no partition effected in the family of the plaintiffs. The 1st plaintiff, 2nd defendant and 3rd defendant executed a released deed dated 26.03.2002 in favour of the 2nd plaintiff in respect of a portion of the suit property, in which the 2nd plaintiff built a house in that portion. 4.1. At that time, there was no partition effected in the family of the plaintiffs. The 1st plaintiff, 2nd defendant and 3rd defendant executed a released deed dated 26.03.2002 in favour of the 2nd plaintiff in respect of a portion of the suit property, in which the 2nd plaintiff built a house in that portion. 4.1. During the month of August, the plaintiffs again approached the 1st defendant for an additional loan of Rs.50,000/-. The plaintiffs executed a sale deed i.e., Nambikkai Kirayams dated 26.09.2001 in favour of the 1st defendant. The 1st defendant executed two different yadast – Ex.A4 dated 19.08.2002 and Ex.A6 - 27.09.2002 respectively agreeing to reconvey the property. Due to loss in the business, the plaintiffs and the 2nd and 3rd defendants were not able to pay interest. Therefore, the 2nd plaintiff executed another sale deed, dated 28.07.2006, in respect of a portion of the suit property in favour of the 1st defendant and for that, the 1st defendant did not pay any sum. All the above sale deeds i.e. Nambikkai Kirayams were executed only as mortgage deeds and therefore, no mutation in the name of the 1st defendant had taken place. While so, the 1st defendant came to the schedule property on 13.07.2007 and began to put up construction. Hence, the plaintiffs filed the present suit for the above reliefs. 5. It is the case of the 1st defendant that out of the total extent of the suit property, the plaintiffs were sold 10 cents in favour of the 1st defendant on 26.09.2002 and another portion was sold by the 2nd plaintiff in favour of the 1st defendant on 28.07.2006 and yet another portion was sold by the 2nd defendant in favour of the 1st defendant on 13.08.2001. The possession of the said property were also handed over to the 1st defendant. The above sale deeds were executed only as actual sale deeds and not as Nambikkai Kirayam. The 1st defendant did not execute yadasts as alleged by the plaintiffs. After purchase, the 1st defendant alone has been paying tax. The 1st defendant constructed 13 shops in the purchased property, after obtaining plan approval, dated 08.01.2007, from Kayathar Town Panchayat. 6. The above sale deeds were executed only as actual sale deeds and not as Nambikkai Kirayam. The 1st defendant did not execute yadasts as alleged by the plaintiffs. After purchase, the 1st defendant alone has been paying tax. The 1st defendant constructed 13 shops in the purchased property, after obtaining plan approval, dated 08.01.2007, from Kayathar Town Panchayat. 6. According to the 3rd defendant, the suit property was not partitioned between the legal heirs of Poolpandian and therefore, all the sale deed executed by the plaintiffs and 2nd defendant in favour of the 1st defendant are not legally valid. Thus, he prayed to allow the suit as prayed for. 7. On the side of the plaintiffs, PW1 to PW3 were examined and Exs.P1 to P14 were marked. On the side of the defendants, the first defendant himself was examined as DW1 and Exs.D1 to D5 were marked. 8. The trial Court, after considering the oral and documentary evidence, has dismissed the suit holding that the deeds executed by the plaintiffs, defendants 2 and 3 are not the mortgage deeds and they are only sale deeds. Aggrieved by the same, the plaintiffs filed appeal in A.S.No.7 of 2011. The first appellate Court, after reappraising the oral and documentary evidence, has confirmed the same. Challenging the concurrent judgment passed by the Courts below, the plaintiffs have come up with this appeal. 9. This second appeal was admitted on the following substantial questions of law: “(i) It is submitted that mortgage by conditional sale is entirely different from “Nambikai Kirayam”. In that aspect, whether the finding of the 1st appellate Court that Ex.A3, Ex.A5, Ex.A7 are all mortgage by conditional sale is legally correct? (ii) In this suit, the possession of the 1st respondent/1st respondent/1st defendant is upheld by virtue of documents Ex.B4 and Ex.B5 which are after suit documents. Whether a main issue in a suit can be decided by the after suit documents? (iii) Whether the findings of both the Courts below that the documents marked as Ex.A3, A5 and Ex.A7 are barred by limitation is correct?” 10. The learned counsel appearing for the appellant vehemently submitted that the first defendant is an usurious money lender, who used to get outright sale deed from his debtors by way of security for his loan. It is called and known as “Nambikkai Kirayam” in the southern District of Tamil Nadu. The learned counsel appearing for the appellant vehemently submitted that the first defendant is an usurious money lender, who used to get outright sale deed from his debtors by way of security for his loan. It is called and known as “Nambikkai Kirayam” in the southern District of Tamil Nadu. Accepting to reconvey the properties mentioned in the sale deeds – Exs.A3, A5 and A7, the first defendant has also executed yadasts – Exs.A4 and A6 and as such, it is clear that the documents viz., Exs.A3, A5 and A7 are all “Nambikkai Kirayam” executed under the nomenclature of sale deeds for the proper repayment of the loan advanced by the first defendant. But, the Courts below without considering the same, has erroneously come to the conclusion that Exs.A3, A5 and A7 are all sale deeds. 11. He would further submit that the Courts below have come to the conclusion that the first defendant has been in possession and enjoyment of the suit property only based on Exs.B4 and B5, which are after suit documents and therefore, the said finding of the Courts below cannot be accepted. He would further submit that the first defendant's own brother by name Santhana Pandi is also a money lender and for obtaining loan from him, the first plaintiff had executed a sale deed dated 09.10.2003 in favour of the said Santhana Pandi as a security and after repayment of the loan amount, he has reconveyed the said property by execution of a registered sale deed dated 02.04.2007, in favour of the 1st plaintiff. In order to prove the fact that the family of the first defendant is engaged in money lending business by getting the property of the debtors by way of a sale deed as a security for the loan, the plaintiffs have filed an application in C.M.P.(MD).No.2581 of 2019 under Order 41 Rule 27 C.P.C. seeking to mark the above registered sale deeds dated 09.10.2003 and 02.04.2007 as additional document in this case. The said documents may be marked as additional documents and the suit may be decreed as prayed for. 12. The said documents may be marked as additional documents and the suit may be decreed as prayed for. 12. The learned counsel appearing for the first defendant would submit that there was no loan transaction entered between the first defendant on the one hand and the plaintiffs and the defendants 2 and 3 on the other hand, as contemplated in the plaint and he has not executed Exs.A4 and A6 – yadasts. The three sale deeds viz., Exs.A3, A5 and A7 are absolute sale deeds executed in favour of the 1st defendant by the plaintiffs and the defendants 2 & 3. Considering the above aspects, the Courts below have rightly non suited the plaintiffs and therefore, the same need not be interfered with. He would further submit that the additional documents sought to be marked by the plaintiffs are not relevant for disposal of this case as the 1st defendant is not a party to the said documents. Thus, he prayed to dismiss this appeal. 13. Heard the learned counsel appearing for both sides and perused the records carefully. 14. The plaintiffs have filed the suit to declare that Exs.A3, A5 and A7 are not sale deeds but only mortgage deeds, based on Ex.A5 and A6 – Yadasts, in which the first defendant was stated to be agreed to reconvey the property mentioned therein on repayment of the loan amount. According to the first defendant, he has paid only sale consideration and not loan to the plaintiffs and the 2nd and 3rd defendants, and that the yadasts have not been executed by him. 15. A bare perusal of Exs.A3, A5 and A7 would show that they are only sale deeds and they have been executed for a valid sale considerations. Nothing has been mentioned about the loan transaction in the same. Exs.A3, A5 and A7 have not contained any clause for reconveyance. PW3, who is one of the attestors of the documents, has categorically stated in his evidence that he signed as a witness in the sale deeds - Ex.A3 and A5 and it is not mentioned in Exs.A3 and A5 as if they are mortgage deed or “Nambikkai Kirayam”. Exs.A3, A5 and A7 have not contained any clause for reconveyance. PW3, who is one of the attestors of the documents, has categorically stated in his evidence that he signed as a witness in the sale deeds - Ex.A3 and A5 and it is not mentioned in Exs.A3 and A5 as if they are mortgage deed or “Nambikkai Kirayam”. Though it is stated by the plaintiffs and the 3rd defendant that there was no partition effected between them, the gift deed dated 12.07.2001 executed by the 1st plaintiff in favour of the 2nd defendant and the release deed dated 26.09.2002 stated to be executed by the first plaintiff, 2nd defendant and 3rd defendant in favour of the 2nd plaintiff in respect of the southern extreme portion of the suit property would show that there could be some interim oral arrangement entered between them. More over, Exs.A3, A5 and A7 have been executed with the knowledge of the legal heirs of Poolpandian ie., the plaintiffs, 2nd defendant and 3rd defendants in favour of the 1st defendant and none of them objected as soon as the execution of the said sale deeds and therefore, now, they cannot resist the right of the 1st defendant. 16. It is not in dispute that Ex.A3 - sale deed dated 13.08.2001 has been executed by the 2nd defendant in respect of a portion of the suit property, after obtaining the said property through gift deed dated 12.06.2001 executed by the 1st plaintiff. Admittedly, the 2nd defendant did not appear before the Court and remain ex parte and he did not support the case of the plaintiffs. The plaintiffs are not parties to the sale deed dated 13.08.2001. Therefore, the plaintiffs have no locus standi to seek to declare the said sale deed, dated 13.08.2001, as a mortgage deed. 17. So far as Ex.A7 - sale deed dated 28.07.2006 executed by the 2nd plaintiff in favour of the 1st defendant is concerned, even according to the plaintiffs, there is no yadast or repurchase agreement executed in respect of the same. Though it is stated by the plaintiffs that Ex.A7 has been executed for arrears of interest amount, in the sale deed itself, the 2nd plaintiff admitted that he has received Rs.1,42,300/- as sale consideration for execution of the same. Though it is stated by the plaintiffs that Ex.A7 has been executed for arrears of interest amount, in the sale deed itself, the 2nd plaintiff admitted that he has received Rs.1,42,300/- as sale consideration for execution of the same. Therefore, the plaintiffs cannot seek the relief of declaration that Ex.A7 is not a sale deed but a mortgage deed. 18. The plaintiffs sought to declare Ex.A3 and A5 as mortgage deed only based on yadasts stated to be executed by the 1st defendant agreeing to reconvey the property on repayment of the loan amount mentioned therein within a period of one year. The first defendant specifically denied the execution of Yadasts - Exs.A4 and A6 at paragraph No.17 of the written statement. The plaintiffs have not proved the execution of Exs.A4 and A6 by the 1st defendant through any evidence. Hence, the relief sought for by the plaintiffs cannot be granted. 19. Even assuming that Exs.A4 and A6 – yadasts have been executed by the first defendant, the plaintiffs have not repaid the loan amount within the time stipulated in the same. In the case of agreement of repurchase, the conditions of repurchase must be mentioned and the stipulation with regard to the time for performance of the agreement must be strictly complied with as the time is essence of the contract. In the decision in Bishwanath Prasad Singh Vs. Rajendra Prasad and another, reported in (2006) 4 SCC 432, the Hon'ble Supreme Court, after referring to Section 58(c) of the Transfer of Property Act, 1882, has held in paragraph No.27 as follows: 27. A bare perusal of the said provision clearly shows that a mortgage by conditional sale must be evidenced by one document, whereas a sale with a condition of transfer may be evidenced by more than one document. A sale with a condition of retransfer is not mortgage. It is not a partial transfer. By reason of such a transfer all rights have been transferred reserving only a personal right to the purchaser (sic seller), and such a personal right would be lost, unless the same is exercised within the stipulated time.” 20. Admittedly, in this case, it is not the case of the plaintiffs that though they were ready to repay the loan amount mentioned in Exs.A4 and A6, the 1st defendant refused to reconvey the property, thereby he refused to perform his part of contract. Admittedly, in this case, it is not the case of the plaintiffs that though they were ready to repay the loan amount mentioned in Exs.A4 and A6, the 1st defendant refused to reconvey the property, thereby he refused to perform his part of contract. It is also not the case of the plaintiffs that even now they are ready to repay the loan amount mentioned in Exs.A4 and A6. As stated earlier, the plaintiffs have not performed their part of contract within the time stipulated and therefore, Exs.A3, A5 and A7 cannot be declared as mortgage deeds. 21. Seeking to mark documents i.e., the sale deed dated 09.10.2003 executed by the first plaintiff in favour of one Santhana Pandi who is the brother of the first defendant and registered sale deed dated 02.04.2007 executed by the said Santhana Pandi reconveying the property in favour of the first plaintiff, the plaintiffs have filed C.M.P.(MD)No.2581 of 2019. As rightly stated by the first defendant, the first defendant is not a party to the said documents. The documents sought to be produced did not disclose any loan transaction between the first plaintiff and the said Santhana Pandi. The said documents are not relevant for the disposal of the present case. Therefore, this Court is inclined to dismiss C.M.P.(MD).No. 2581 of 2019. 22. It is the contention of the plaintiffs that the Courts below have upheld the possession of the first defendant after the suit documents. In this case, the suit was filed on 15.07.2007. Admittedly, at the time of purchase, the disputed portion of the properties were vacant land. In Exs.A3, A5 and A7 itself, it is stated by the vendors that the possession of the property mentioned therein is handed over on the same day to the vendee i.e. the first defendant and they have also agreed for change of patta. A perusal of Ex.B4 shows that for construction of shops in the property in dispute, the first defendant has obtained plan approval from Kayathar Town Panchayat on 08.01.2007 itself i.e., even six months before filing of the suit. It clear proves that the possession of the disputed properties was with the first defendant even before filing of the suit. Therefore, the above contention of the plaintiffs cannot be accepted. 23. All the substantial questions of law are accordingly answered against the plaintiffs. It clear proves that the possession of the disputed properties was with the first defendant even before filing of the suit. Therefore, the above contention of the plaintiffs cannot be accepted. 23. All the substantial questions of law are accordingly answered against the plaintiffs. Both the Courts below have rightly non suited the plaintiffs. The concurrent judgments passed by the Courts below are liable to be confirmed. 24. In the result, this second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.