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2022 DIGILAW 164 (MAD)

Govindaraj (died) v. Valliammal(died)

2022-01-19

R.VIJAYAKUMAR

body2022
JUDGMENT : The plaintiffs are the appellants. 2. The plaintiffs filed O.S.No.280 of 1989 before the Additional District Munsif Court, Srivilliputhur for the relief of redemption of mortgage and for recovery of possession. The suit was decreed by the trial Court. The defendant filed A.S.No.50 of 1994 before the District Court, Srivilliputhur. The learned District Judge was pleased to allow the appeal and dismissed the suit. As against the same, the plaintiffs have filed the above second appeal. 3. The plaintiffs had contended that the suit property originally belonged to one Kuppusamy Naidu. The said Kuppusamy Naidu and his son Ramasamy Naidu have jointly mortgaged the suit schedule property under Exhibit A1 on 20.08.1958 in favour of one Nachiar Ammal and Govindasamy. On 11.09.1965, the mortgagees have made over the mortgage under Exhibit A2 in favour of one S.K.Ramasamy. The said S.K.Ramasamy has made mover the mortgage on 21.05.1975 under Exhibit A3 in favour of the defendant. On 21.05.1975 under Exhibit A4 a sub mortgage was created by the original owner namely Ramasamy Naidu and his minor son in favour of the defendant. On 15.02.1977, the original owner Ramasamy Naidu and his minor son have executed a registered sale deed under Exhibit A5 in favour of one Kamalammal. The legal heirs of the Kamalammal are the plaintiffs. Along with the plaint, the mortgage money of Rs.15,000/- was deposited and the plaintiffs prayed for redemption of mortgage and recovery of possession from the defendant. 4. The defendant filed a written statement admitting Exhibits A1 to A4 othi deeds and the sub mortgage. The defendant did not dispute Exhibit A5 sale in favour of the plaintiffs. The only contention of the defendant was that she had executed a registered lease deed on 12.12.1977 under Exhibit B1 in favour of one Ramasamy and he is in possession of the suit schedule property. According to the defendant, the suit is bad for non-joinder of the said lessee of the property. 5. The trial Court considered the sequences of documents from Exhibits A1 to A5 and arrived at a finding that the plaintiffs are the purchasers from the original mortgagor. Hence, they are entitled to redeem the suit schedule property from the mortgagee namely the defendant. 5. The trial Court considered the sequences of documents from Exhibits A1 to A5 and arrived at a finding that the plaintiffs are the purchasers from the original mortgagor. Hence, they are entitled to redeem the suit schedule property from the mortgagee namely the defendant. At the time of arguments, the defendant raised a plea that the property mortgaged under Exhibit A1 is only having an extent of 52 ½ cents, but Exhibit A5 sale deed in favour of the plaintiffs is having an extent of 57 ½ cents which is shown as the suit schedule property. The trial Court rejected the said contention on the ground that no such defence with regard to the extent of land has been raised in the written statement. The trial Court proceeded to decree the suit as prayed for. 6. The First Appellate Court has considered the boundary recital in Exhibits A1 and A5 and also the extent of property covered under Exhibits A1 and A5 and arrived at a finding that the suit schedule property does not tally with the property mortgaged under Exhibit A1. On the said ground, the appeal was allowed and the suit was dismissed. As against the same, the present second appeal has been filed by the plaintiffs. 7. The second appeal has been admitted on the following substantial questions of law: “1. Whether the first appellate Court was right in holding that the non-joinder of the lessee of Othidar (Mortgagee), in a suit for redemption and possession by the purchaser from the mortgagor with a right of redemption is fatal to the case? 2. Whether the first appellate Court was right in holding that the suit property is different from mortgage property especially when the said dispute was never raised by the defendant but on the other hand admitted throughout?” 8. The learned counsel for the appellants had contended that there is no discrepancy between Exhibit A1 mortgage deed and Exhibit A5 sale deed. He further contended that the defendant has not raised a plea in the written statement disputing the identity of the suit schedule property. In fact, the defendant only pleaded that she has handed over possession to the lessee and the suit is bad for non-joinder of the lessee. Apart from the said pleadings, no other defence was raised in the written statement. In fact, the defendant only pleaded that she has handed over possession to the lessee and the suit is bad for non-joinder of the lessee. Apart from the said pleadings, no other defence was raised in the written statement. He further contended that when there is no pleadings, the evidence or argument with regard to the identity of the property cannot be considered by the First Appellate Court. He further contended that the lessee is not a necessary party to the suit for redemption. Exhibits A1 to A4 have been referred to under Exhibit A5 sale deed and hence, the contention of the defendant that Exhibit A5 sale deed is different from Exhibit A1 mortgage deed is not legally sustainable. 9. Per contra, the learned counsel for the respondents contended that the boundary recitals in Exhibit A1 mortgage deed are completely different from the boundary recitals in Exhibit A5 sale deed in favour of the plaintiffs. He further contended that under Exhibit A1 mortgage deed, an extent of only 52 ½ cents was mortgaged, but now the plaintiffs are attempting to recover possession for an extent of 57 ½ cents based upon Exhibit A5 sale deed. He further contended that the First Appellate Court has rightly arrived at a finding that the plaintiffs have not established that the suit schedule properties alone are the subject matter of the mortgage under Exhibit A1 mortgage deed. 10. I have considered the submissions on either side. 11. The plaintiffs have filed a suit for redemption of mortgage and recovery of possession. The suit schedule properties have been originally mortgaged under Exhibit A1 in favour of one Nachiar Ammal and Govindasamy. The said Nachiar Ammal and Govindasamy have created a made over document in favour of one S.K.Ramasamy under Exhibit A2. The said S.K.Ramasamy has created another made over document in favour of the defendant under Exhibit A3. The original owner namely Ramasamy Naidu and his minor son have created a sub mortgage in favour of the defendant under Exhibit A4. All these documents are admitted in the written statement. The defendant has not questioned Exhibit A5 sale deed in favour of the plaintiffs in the written statement. There is no whisper in the written statement about the discrepancy with regard to the extent of property or boundaries of the property. All these documents are admitted in the written statement. The defendant has not questioned Exhibit A5 sale deed in favour of the plaintiffs in the written statement. There is no whisper in the written statement about the discrepancy with regard to the extent of property or boundaries of the property. In fact the defendant has admitted in the written statement that she had leased out the suit schedule property in favour of one Ramasamy who is a necessary party in the suit. Hence, this Court can easily come to a conclusion that the relationship between the mortgagor and mortgagee has been established by the plaintiffs. The defendant has also not disputed the sale deed under Exhibit A5 in favour of the plaintiffs. Hence, the plaintiffs have entered into the shoes of the mortgagor and entitled to redeem the suit schedule property. 12. Exhibit A5 sale deed in favour of the plaintiffs clearly refers to the previous mortgages under Exhibits A1 to A4 and directs the purchaser to redeem the same. The only contention on the side of the defendant raised at the time of argument is that under Exhibit A1 only an extent of 52 ½ cents was in the centre of Survey No.119/2 was mortgaged, but under Exhibit A5 sale deed, 57 ½ cents in the eastern side of the western portion of Survey No.119/2 has been sold in favour of the plaintiffs. Hence, the plaintiffs will not be entitled to redeem the mortgage under Exhibit A1. 13. Though a larger extent has been sold under Exhibit A5 and the same is reflected as suit schedule property, the Court can very well mould the relief by granting redemption of mortgage and delivery of possession for a lesser extent of 52 ½ cents as per Exhibit A1 mortgage deed. In a suit in redemption, only the mortgagee is a necessary party and a lessee of the said property is not a necessary party. The findings of the First Appellate Court that non-impleading of lessee would amount to non-joinder of necessary party is not legally sustainable. 14. In view of the above discussion, the substantial questions of law are answered as follows: 1.The lessee of a mortgagee is not a necessary party to a suit for redemption of mortgage and hence, the suit is not bad for non-joinder of necessary parties. 2. 14. In view of the above discussion, the substantial questions of law are answered as follows: 1.The lessee of a mortgagee is not a necessary party to a suit for redemption of mortgage and hence, the suit is not bad for non-joinder of necessary parties. 2. The defendant has not raised any plea relating to discrepancy with regard to the boundary or extent of the property in the written statement. When there are no pleadings, the First Appellate Court was not right in non-suiting the plaintiffs based upon the contentions raised at the time of arguments. Though the plaintiffs have prayed for a decree for 57 ½ cents, this Court can mould the relief and grant a decree for 52 ½ cents which is the subject matter of Exhibit A1 mortgage deed. 15. Both the substantial questions of law are answered in favour of the appellants. The second appeal is allowed. The judgment and decree of the First Appellate Court are set aside. The following decree is passed: (i) There shall be a preliminary decree in favour of the plaintiffs for redemption of mortgage and the defendant is directed to hand over the originals of Exhibits A1 to A4 to the plaintiffs after receiving the mortgage money deposited by the plaintiffs in the Court. (ii) The decree for redemption and recovery of possession is restricted to the extent of 52 ½ cents instead of 57 ½ cents within the boundary recital of the suit schedule property. (iii) In all other respects, the judgment and decree of the Courts below are confirmed. No costs.