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2024 DIGILAW 1062 (AP)

K. Jhanai Laxhmi Bai v. B. Visweswara Rao

2024-08-09

V.GOPALA KRISHNA RAO

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JUDGMENT : V. GOPALA KRISHNA RAO, J. 1. The appeal is filed against the judgment and decree dated 24-10-2002 passed by the learned Senior Civil Judge, Gudivada, Krishna District, in O.S.No.19 of 1994. The suit is filed for recovery of an amount of Rs.61,150/-. 2. Brief averments in the plaint filed by the plaintiff are as follows: (a) The plaintiff pleaded that the 1st defendant is the wife and defendants 2 and 3 are minor children of one late Karempudi Venkata Sambasiva Rao and the said Sambasiva Rao during his life time, borrowed an amount of Rs.40,000/- from the plaintiff on 22-3-1991 for the purpose of his joint family necessities and he executed a registered mortgage deed in favour of the plaintiff in respect of the plaint schedule property. (b) The plaintiff further pleaded that in spite of repeated demands, the said Sambasiva Rao, during his life time, postponed the payment and he died intestate and all the properties of Sambasiva Rao devolved upon the defendants as his legal representatives and after the death of Sambasiva Rao, though the plaintiff demanded the defendants to deposit the suit debt, they failed to discharge the suit debt and that the plaintiff is constrained to file the suit. 3. The case of the defendants, as per the written statement filed by them, is that in the presence of elders, all the properties of late Sambasiva Rao were divided by metes and bounds in the first week of January, 1991 and in the said partition, the plaint schedule property fell to the share of Karempudi Suneetha i.e. 3rd defendant and since then, the defendants 2 and 3 and late Sambasiva Rao have been in separate possession and enjoyment of the plaint schedule property. They further pleaded that subsequently, a regular partition deed was executed on 11-9-1991 and registered the same and later Sambasiva Rao died on 13-5-1992 and they further pleaded that the suit mortgage deed is not supported by consideration. 4. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the mortgage deed dated 22-3-1991 is true, valid and binding on the defendants ? (2) Whether the alleged mortgage is for legal necessity or for the benefit of the joint family of Sambasiva Rao ? (3) Whether the plaintiff is entitled to suit amount ? and (4) To what relief ? 5. (2) Whether the alleged mortgage is for legal necessity or for the benefit of the joint family of Sambasiva Rao ? (3) Whether the plaintiff is entitled to suit amount ? and (4) To what relief ? 5. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 3 are examined and Exs.A-1 to A-7 are marked. On behalf of the defendants, D.W.1 is examined and Exs.B-1 and B-2 are marked. 6. After completion of the trial and hearing the arguments of both sides, the trial Court passed a preliminary decree for Rs.61,150/- with costs and interest at the rate of 12% per annum on Rs.40,000/- from the date of suit till the date of redemption and thereafter, with interest at the rate of 6% per annum from the date of redemption till the date of realization, granting 6 months' time for redemption. Felt aggrieved of the aforesaid judgment and decree passed by the learned Senior Civil Judge, Gudivada, the unsuccessful defendants therein filed the present appeal. 7. Heard Sri Dantu Srinivas, learned counsel appearing for the appellants/defendants, through virtual mode. None appeared for the respondent/plaintiff. 8. The learned counsel for the appellants would contend that if the Court below had tried issue No.1 separately, it would be in favour of the defendants because there was no prior demand by the plaintiff before the death of Sambasiva Rao whom the plaintiff alleged to have been executed the deed on 22-3-1991 in favour of him. He would further contend that the Court below ought to have held issue No.2 in favour of the defendants as the mortgage made by the 1st defendant's husband is not binding on them, as he was having no issues over the property as it was already partitioned. He would further contend that the Court below erred in holding that D.W.1 failed to produce any evidence on record to show that late Sambasiva Rao is a man of bad vices. He would further contend that the appeal may be allowed and the judgment and decree passed by the learned trial Judge may be set aside. 9. Now, the points for determination in the appeal are: (1) Whether the trial Court is justified in decreeing the suit and whether the judgment and decree passed by the learned trial Judge needs any interference ? and (2) To what extent ? 10. 9. Now, the points for determination in the appeal are: (1) Whether the trial Court is justified in decreeing the suit and whether the judgment and decree passed by the learned trial Judge needs any interference ? and (2) To what extent ? 10. Point No.1: Whether the trial Court is justified in decreeing the suit and whether the judgment and decree passed by the learned trial Judge needs any interference ? The case of the plaintiff is that one Karempudi Venkata Sambasiva Rao borrowed an amount of Rs.40,000/- from him on 22-3-1991 and he executed a registered mortgage deed on the same day by mortgaging the plaint schedule property and subsequently, though the plaintiff made several demands, the said Sambasiva Rao postponed the payment of debt and later Sambasiva Rao died intestate and all his properties devolved upon the defendants as his legal representatives. The plaintiff further pleaded that after the death of Sambasiva Rao, though he demanded the defendants to repay the said amount, they failed to discharge their duty and the assets of the deceased Sambasiva Rao are in the possession of the defendants. 11. To discharge his burden, the plaintiff relied on the evidence of P.Ws.1 to 3. P.W.1 is none other than the plaintiff. The registered mortgage deed got exhibited as Ex.A-1. P.W.2 is one of the attestors in the registered mortgage deed. P.W.3 is the scribe of Ex.A-3 registered mortgage deed. It is in the evidence of P.W.1 about borrowing Rs.40,000/- by the husband of 1st defendant, by name Karempudi Venkata Sambasiva Rao and also execution of a registered mortgage deed Ex.A-1 in favour of the plaintiff. The borrowing of an amount of Rs.40,000/- and so also the execution of a registered mortgage deed Ex.A-1 in favour of the plaintiff by late Sambasiva Rao is narrated by P.W.1 in his evidence and the same is supported by P.W.2. The evidence of P.W.2 also goes to show that consideration of Rs.40,000/- was passed under Ex.A-1 registered mortgage deed. His evidence is further corroborated by the evidence of P.W.3, who is the scribe of Ex.A-1 mortgage deed. The evidence of P.Ws.1 to 3 clinchingly proves about borrowing of Rs.40,000/- by late Karempudi Venkata Sambasiva Rao and also execution of Ex.A-1 registered mortgage deed in favour of the plaintiff. 12. His evidence is further corroborated by the evidence of P.W.3, who is the scribe of Ex.A-1 mortgage deed. The evidence of P.Ws.1 to 3 clinchingly proves about borrowing of Rs.40,000/- by late Karempudi Venkata Sambasiva Rao and also execution of Ex.A-1 registered mortgage deed in favour of the plaintiff. 12. The execution of registered mortgage deed Ex.A-1 is not at all disputed by the appellants and their relationship with Sambasiva Rao is also not at all disputed by them. The defence put forth by the appellants in the written statement itself is that Ex.A-1 registered mortgage deed was obtained by the plaintiff while Sambasiva Rao was under the influence of liquor. Admittedly, there is no material on record to show that the said late Sambasiva Rao was addicted to bad vices. Absolutely, there is no evidence on record to show that Ex.A-1 was obtained by the plaintiff while Sambasiva Rao was under the influence of liquor. Another defence put forth by the appellants is that the plaint schedule property was got by the 3rd defendant in a family partition under Ex.B-1 registered partition deed and prior to Ex.B-1, there was an oral partition in between both the parties. Admittedly, Ex.A-1 registered mortgage deed is much prior to Ex.B-1 partition deed. Though the appellants pleaded that there was an oral partition in between both the parties, the same is not at all proved by the appellants on record. 13. The evidence on record clearly proves about the borrowing of an amount of Rs.40,000/- by late Karempudi Venkata Sambasiva Rao and also the execution of Ex.A-1 registered mortgage deed in favour of the plaintiff by mortgaging the plaint schedule property. It is not the case of the appellants that the said property is not in their possession. The defence put forth by the defendants is that Ex.A-1 was obtained by the plaintiff while late Sambasiva Rao was under the influence of liquor. Admittedly, there is no evidence on record to show that Ex.A-1 was obtained by the plaintiff while the executant was under the influence of liquor. Morevoer, to discharge their burden, the appellants failed to prove the defence taken by them in the written statement itself except examining the 1st defendant as D.W.1. There is no evidence on record to show that Ex.A-1 was obtained by the plaintiff from Sambasiva Rao while he was under the influence of liquor. Morevoer, to discharge their burden, the appellants failed to prove the defence taken by them in the written statement itself except examining the 1st defendant as D.W.1. There is no evidence on record to show that Ex.A-1 was obtained by the plaintiff from Sambasiva Rao while he was under the influence of liquor. Absolutely, there is no evidence on record to show that there was an oral family arrangement in between the defendants prior to alleged Ex.B-1. As stated supra, though the appellants relied on Ex.B-1, Ex.A-1 registered mortgage deed is much prior to Ex.B-1 transaction. The learned trial Judge rightly held in his judgment that Ex.B-2 registration extract of gift deed executed by the parents of D.W.1 in her favour has no relevance to the suit transaction. For the aforesaid reasons, I do not find any illegality in the judgment and preliminary decree of mortgage passed by the learned trial Judge. Therefore, the judgment and decree passed by the learned trial Judge is perfectly sustainable under law and it requires no interference. 14. Point No.2:- To what extent ? Resultantly, the appeal is dismissed, confirming the judgment and decree, dated 24-10-2002, in O.S.No.19 of 1994 on the file of Senior Civil Judge's Court, Gudivada. Pending applications, if any, shall stand closed. Considering the circumstances of the case, I order each party to bear their own costs in the appeal.