Dismissed

C.v.Sobhana v. Poovasnnur Edakkat Kammutty

Kerala HC3 Nov 2016RSA/673/2007

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a second appeal where the defendant contested the finding of a mortgage deed, arguing it was a lease. Upholding the concurrent finding of courts below, the Court held that the defendant was barred by Section 92 of the Evidence Act from proving an oral lease since she failed to plead exceptions in her written statement.

What did the court decide?

Appellant given four months to vacate and deposit ascertained amounts pending before the trial court.

C.v.Sobhana Vs Poovasnnur Edakkat Kammutty — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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RSA.No. 673 of 2007 (E )

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AGAINST THE JUDGMENT DATED 03-01-2007 IN AS 98/2003 of ADDL. DISTRICT COURT, KOZHIKODE- II

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AGAINST THE JUDGMENT DATED 29-11-2001 IN OS 837/1998 of PRL.MUNSIFF COURT, KOZHIKODE-II

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APPELLANT/APPELLANT/DEFENDANT:

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C.V.SOBHANA, D/O.C.V.DAS,

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MUKKOM PARAMBATH, W/O.KUNNATH VISWANATHAN, NIMMI NIVAS, PULAYAIL PARAMBA, P.O.FEROKE, KOZHIKODE.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:

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POOVANNUR EDAKKAT KAMMUTTY, S/O.KADER, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK.

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BROTHER MOHAMMED BASHEER, S/O.KADER, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK.

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BROTHER MOHAMMED MUSTHAFA, S/O.KADER, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK.

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BROTHER SHAMSU, S/O.KADER, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK.

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...2

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RSA.No. 673 of 2007 (E )

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BROTHER ABDUL MANAFU, S/O.KADER, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK.

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POOVANNUR EDAKKAT UMMERIYAM,

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(DIED; LEGAL HEIRS ARE RECORDED) W/O.KADER,VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK.

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(AS PER THE ORDER DTD.03.11.2016 IN RSA.673/2007, IT IS RECORDED THAT THE RESPONDENT NOS.1 TO 5 ARE THE LEGAL HEIRS OF THE DECEASED 6TH RESPONDENT)

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R1 TO 5 BY ADV. SRI.R.RAMADAS

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.673 of 2007

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Dated this the 3^rd day of November, 2016

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JUDGMENT

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~ ~ ~ ~ ~

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The appellant is the defendant, who has suffered the decree in O.S.No.837/1998 of the Munsiff's Court-II, Kozhikode as well as the appellant, who met with failure, in Appeal Suit No.98/2003 of the District Court, Kozhikode.

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The short question that arises for consideration is,

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whether the courts below are justified in concurrently arriving at a finding that Ext.A1 document is a 'mortgage deed' and not a 'lease deed' and the transaction under Ext.A1 is a mortgage only. The plaintiffs filed a suit for redemption of the mortgage. They are the legal heirs of the deceased 'Edakkattu Khader', who mortgaged the said property to the defendant, by virtue of Ext.A1. The subject matter of the mortgage is a room in a building constructed by the said Khader. According to the plaintiffs, when they incurred debt for the construction of the building, they obtained Rs.10,000/- from the defendant

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RSA.673/07-E :2:

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to discharge the said debt and mortgaged the plaint schedule room to the defendant to secure the loan amount. As per the terms of mortgage, the defendant paid Rs.300/every month as surplus profit and the same was later enhanced to Rs.350/- per month. The said Khader could not redeem the mortgage during his life time. He executed a Will bequeathing the plaint schedule property to the plaintiffs 1 to 5 and reserving the right to collect surplus profit during the life time, to the 6^th plaintiff. All the legal heirs of the deceased mortgagor, on whom the property devolved under Ext.A6 Will, are entitled to redeem the mortgage.

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On the other hand, the defendant contended that the real transaction, evidenced by Ext.A1, is not a mortgage and it is a lease. According to the defendant, the plaint schedule room was taken on lease, by the defendant from Khader, on payment of Rs.10,000/- as advance and the monthly rent was fixed at Rs.300/- initially and enhanced the same to Rs.350/-. The defendant signed a document as she was made to believe that it was a lease deed. She did not read it or understand the contents of the document.

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RSA.673/07-E :3:

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Thus the transaction was not a mortgage.

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On the aforesaid pleadings both parties adduced evidence. P.Ws.1 and 2 were examined and Exts.A1 to A6 were marked on the side of the plaintiff and Exts.B1 to B13 were marked on the side of the defendants. After analysing the evidence on record the learned Munsiff found that the transaction under Ext.A1 was a mortgage and not a lease as claimed by the defendant. In appeal, the learned District Judge re-appreciated the entire evidence on record and concurred with the findings of the trial court. Thus the concurrent finding that the transaction under Ext.A1 is a mortgage and not a lease, is challenged in this Regular Second Appeal.

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Heard the learned counsel for the appellant and the learned counsel appearing for the respondents.

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The sole question to be considered in this appeal is what was the real transaction under Ext.A1; a mortgage or a lease? The courts below concurrently found that the transaction evidenced by Ext.A1 is a mortgage only and not a lease. Can the courts below be justified in findings so. It is the case of the defendant that Ext.A1 document was

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RSA.673/07-E :4:

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executed without reading or understanding its contents. Here, it is pertinent to note that the defendant has no case of vitiating elements such as fraud, misrepresentation, undue influence, coercion, etc. D.W.1 is none other than the husband of the defendant who had managed the transaction between Khader and the defendant. In his evidence he admitted that he has done everything for and on behalf of his wife for the transactions under Ext.A1. Admittedly D.W.1 is a Graduate Engineer. As concurrently held by the courts below, it is hardly believable that such a person would allow his wife to sign the document without understanding the contents of the document in the absence of any kind of vitiating elements referred above. The learned Munsiff who witnessed the demeanour of D.W.1 had made an observation that his evidence goes to show that he may go to any extent to suit the contention taken by the defendant. More importantly, D.W.1 is not only the contesting witness but the identifying witness at the time of registration of the document. He himself admitted that he felt that the document should be read; but the same was not given to him for reading. His evidence cannot be

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RSA.673/07-E :5:

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believed at any stretch of imagination. If the document was not given to the defendant before registration, certainly being a highly qualified person, he would not have allowed his wife signing the document without reading or understanding its contents.

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Even though the defendant has contended that the real transaction is a lease, no positive evidence except Ext.B34 letter sent by the 6^th plaintiff was adduced to substantiate the said contention. As rightly held by the courts below, the word “rent” in Ext.B34 letter cannot upset the recitals in Ext.A1 nor is the use of word “rent” decisive in determining the issue.

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As rightly held by the learned Munsiff, the bar under Section 92 of the Indian Evidence Act will stand in the way of adducing evidence against Ext.A1. Going by the contentions raised in the written statement, it could be seen that the defence version taken by the defendant will not fall under the exemptions provided under the proviso (1) to (5) to Section 92 of the Indian Evidence Act. Unless the facts constituting ingredients of the requirements under the proviso (1) to (5) are pleaded, no evidence of

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RSA.673/07-E :6:

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oral agreement or statement shall be admitted as between the parties to any such instruction for the purpose of contradicting, verifying or adding to or subtracting from the terms of a written document. Here, the defendant has not pleaded the ingredients constituting the requirements under the proviso to Section 92 in her pleadings. Therefore, as rightly held by the learned Munsiff, the defendant is barred from adducing evidence against the express terms of Ext.A1 mortgage deed. In the above analysis, the courts below are justified in rejecting the contentions raised by the defendant and the trial court is justified in decreeing the suit and the appellate court is justified in concurring with the findings of the trial court. There is no illegality or impropriety in the impugned judgments. This appeal is dismissed accordingly. 9. The learned counsel for the appellant/defendant prayed for granting some time to vacate the shop room. Having regard to the facts and circumstances of the case, the appellant is given four months time to vacate the shop room provided that she shall deposit the entire amount due under the decree within a period of two months from

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RSA.673/07-E :7:

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today before the trial court and she shall continue to pay or deposit before the trial court the rent for the remaining two months also without failure. The respondents/plaintiffs are allowed to realise the said amounts from the court. In the event of failure, the respondents are allowed to proceed with the execution proceedings. No question of law arises for consideration in the appeal.

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All pending interlocutory applications will stand closed.

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Sd/-

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K.HARILAL, Judge.

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okb

C.v.Sobhana v. Poovasnnur Edakkat Kammutty

Case brief

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C.v.Sobhana v. Poovasnnur Edakkat Kammutty

Case brief

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