This appeal challenged a dismissal of a suit seeking redemption of mortgaged property. The High Court upheld the lower court's finding that the assignment deed was a valid sale, noting the appellant failed to prove the underlying loan transaction or produce evidence of an agreement for reconveyance.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
FRIDAY, THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940
RFA.No. 196 of 2018
AGAINST THE JUDGMENT DATED 20-02-2018 IN OS 76/2016 of II ADDITIONAL SUB COURT, KOZHIKODE
APPELLANT/ PLAINTIFF :
ULLATTIL MANI, AGED 66 YEARS, S/O. NARAYANA PANICKER, ULLATTIL HOUSE, KEDAVOOR VILLAGE, PONOOR DESOM, P.O.KATTIPPARA, THAMARASSERY TALUK, KOZHIKODE DISTRICT.
BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SRI.P.T.ABHILASH
RESPONDENTS/ DEFENDANTS :
1 BINDU, AGED 41 YEARS, W/O. ABHILASH JOSEPH, THIRUTHIPARAMBIL, MALAPARAMBA P.O., CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE - 673 009.
2 ABHILASH JOSEPH, AGED 48 YEARS, S/O. JOSEPH, THIRUTHIPARAMBIL, MALAPARAMBA P.O., CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE - 673 009.
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R1 & R2 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.THOMAS P. KURIVILLA SRI.P.PRIJITH SRI.AJAY BEN JOSE
THIS REGULAR FIRST APPEAL HAVING BEEN COME UP FOR ADMISSION ON 13.09.2018, THE COURT ON 08.02.2019 DELIVERED THE FOLLOWING:
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JUDGMENT
Annie John, J.
The appellant was the plaintiff in
O.S.No.76/2016 of the IInd Additional Subordinate
Judges' Court, Kozhikode. The said suit was filed for redemption of the mortgaged property, by declaring that Document No.3525/2013 of SRO, Thamassery (Ext.A1) as null and void and for injunction the defendants from entering into the property comprised in Ext.A1 document.
residing at Dubai for the last 42 years and he was in absolute possession, enjoyment and ownership of 3.5 acres of property, by virtue of Document No.4409/07 of SRO, Thamarassery. A shed bearing No.3/322 was also situated in the said property and the said shed is utilised as a toddy shop.
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money during May 2013, he approached the 2nd respondent and sought a loan of Rs.70 lakhs, for purchasing the portion of an estate. As a pre-condition for handing over the said loan, the 2nd respondent insisted for the registration of a document in favour of the first respondent, who is the wife of the 2nd respondent, and it was agreed upon by the plaintiff and the 2nd respondent that on repayment of the entire loan
amount, with Rs.4,750/- towards interest for each one lakh rupee per month, the document which would be executed in favour of the first respondent, would be re-conveyed in favour of the respondent, by executing the necessary deed.
his brother were engaged in money lending business for the last several years and they advanced loan after securing title deeds of properties and on registering the
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deed of conveyance in favour of them, or in favour of said persons as may be suggested by them. He has also produced Exts.A12 to A53, true copies of such documents on earlier transactions executed in favour of the 2nd respondent and his brother.
below and filed a suit on 03.08.2016 and the court
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below issued Annexure A2 injunction order. The
respondents entered appearance herein by stating that the appellant has executed a deed in favour of the first respondent after accepting the sale consideration and it was not a sham document as alleged by the appellant.
So, on the basis of the rival contentions and appreciations of the facts and law, the court below by judgment dated 20.02.2018 in OS.No.76/2018 found that the appellant has failed to establish his case. Highly aggrieved by the said judgment, the appellant has approached this Court.
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absolute possession, enjoyment and ownership of the plaint schedule property and in fact, as a security towards the loan amount of Rs.70 lakhs, advanced by the 2nd respondent, Ext.A1 deed was executed in favour of the first respondent. Later, the appellant borrowed Rs.10 lakhs more from the 2nd respondent. Exts.A12 to A53 were executed in favour of the 2nd respondent and his brother in exactly in similar situations on advancing loan to several people. In fact, the 2nd respondent and his brother is conducting money lending business. When the appellant has availed a loan of Rs.70 lakhs from the 2nd respondent, he happened to execute Ext.A1 document in favour of the first respondent, who is the wife of the 2nd respondent on a condition that on repayment of the loan amount with interest, the property would be re-conveyed in favour of the appellant. Though the entire loan amount was paid, the respondent has not re-conveyed the property. In
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fact Ext.A1 is a sham document executed in favour of the first respondent. In fact, FIR was registered against the 2nd respondent under the Money Lenders Act, 1958. In fact, the finding entered by the court below that there was no prayer to declare Ext.A1 as a mortgage deed and without prayer of declaration in that manner, a decree as sought by the appellant could not be granted is incorrect. So all the reasons and grounds as mentioned above, the appellant prays for setting aside the judgment dated 20.02.2018 in OS.No.76/2016 of IInd Additional Subordinate Judges Court, Kozhikode and allow the relief sought in OS.No.76/2016.
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favour of the first respondent due to the compulsion on the part of the 2nd respondent. Then he has advanced Rs.70 lakhs as loan to the appellant. In this connection, we have gone through Ext.A1 document, which was produced on the side of the appellant. Ext.A1 is the jenmom assignment deed No.3525/2013 of Thamassery SRO executed by the appellant in favour of the first respondent. According to the appellant, Ext.A1 deed of assignment was executed as a security
for the loan transaction between him and the 2nd respondent. He further contended that he borrowed an amount of Rs.70 lakhs from the 2nd respondent and he had executed Ext.A1 sale deed as insisted by the 2nd respondent as a security for the loan transaction. In fact the appellant has alleged that even though he has executed A1 document, he has not transferred the possession to the first respondent. In fact, the appellant has no case that he has got any transaction
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with the first respondent. It is an admitted fact that
the first respondent is the wife of the 2nd respondent. The respondents have taken a contention that there is no such loan transaction as alleged by the appellant. In fact, Ext.A1 sale deed was executed in favour of the first respondent after receipt of the sale consideration. In fact, on the date of the execution of the sale deed, the appellant has handed over the possession to the first respondent also.
the repayment of the entire loan including principal amount with interest, the property would be re-conveyed in favour of the appellant. The plaint schedule property consists of 3 acres 5 cents with a shed situated therein. The appellant has not disputed
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that he has not executed Ext.A1 sale deed. But the main argument on the side of the appellant's counsel was that only due to some exigencies, Ext.A1 deed was executed as a mortgage deed in favour of the first respondent as insisted by the 2nd respondent. Even though Ext.A1 deed was executed, the title and possession of the property have not been parted with the first respondent. Even at the time of filing of the suit, the appellant claimed that he is in possession of
the plaint schedule property and the respondents have not entered into the property so far.
and evidence, it has borne out that the appellant has taken a contention that he has executed mortgage deed in favour of the first respondent for repayment of
the loan which was availed from the 2nd respondent. But, on the other hand, he has also stated that he has executed the sale deed in favour of the first respondent
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only as a security for the repayment of the amount. But, there was no prayer in the suit for declaration that Ext.A1 is a mortgage deed and the averments are relied on the assumption that he has executed Ext.A1 sale deed in favour of the first respondent.
appellant, he has adduced oral evidence. PWs 1 to 4 were examined. PW1 is the appellant himself. He has given evidence in tune with the averments contained in the plaint. It is a case of the appellant that there is a shed situated in the plaint schedule property, which was rented out for conducting a toddy shop. In order to establish this fact, PW2 was examined. According to him, he is a licensee of the toddy shop situated in the plaint schedule property. Over and above, he examined PW3 and PW4, who are workers of the appellant. The main allegation of the appellant is that the 2nd respondent and his brother were doing money
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lending business in a large scale and while advancing the money, they secure sale deeds from the borrowers. O repayment of the amount they would re-convey the property by executing necessary assignment deeds. In order to substantiate this fact, Ext.A12 to A53 deeds were produced to prove that similar transaction were effected by the 2nd respondent and his brother. In addition to that, the appellant has procured Ext.C1 commission report for the purpose of canvassing the
point that at the time of the inspection of the property, the appellant was present there and he has opened the
gate in order to facilitate entry of the commissioner into the property.
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to execute a deed for re-conveyance in favour of him. In addition to that the appellant has taken a contention that there was an independent agreement between the parties to re-convey the property at the time of the discharge of the loan amount. When the appellant has taken such a contention and the respondent has denied such transaction, the burden is heavy on the appellant to establish that there was such additional agreement executed between himself and the 2nd respondent for the purpose of re-conveyance of the property in favour of the appellant after the settlement of the entire loan transaction. Further, he has to prove that there was an obligation on the part of the first respondent to execute a deed of re-conveyance in favour of the appellant. The definite case of the appellant is that he has borrowed Rs.70 lakhs from the 2nd respondent, who is a licensed money lender, and at the time of borrowal, as insisted by the 2nd respondent, Ext.A1 sale
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deed was happened to be executed in favour of the first respondent.
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addition to Rs.70 lakhs. For this purpose also, he has not produced any documents to prove the same. Further, he has also alleged that he had repaid Rs.2,40,00,000/- to the 2nd respondent. Surprisingly the appellant could not able to procure any document before the court to prove that he had repaid such a huge amount of Rs.2,40,00,000/- to the 2nd respondent. During evidence, the appellant has stated that he has paid the amount on monthly basis. Further, he has also argued that after getting loan amount from the 2nd respondent, he has purchased property at Kinalur. Even then, the appellant could not produce such a document before the court. The appellant is unable to substantiate the plaint averments in the correct perspective. He has not adduced any independent evidence to substantiate that he had borrowed any amount from the 2nd respondent. In addition to that he has not produced any documents to
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substantiate this allegations as mentioned in the plaint. So in the absence of such evidence, it is unable to believe that Ext.A1 document was executed as a security for repayment of the loan alleged to have obtained from the 2nd respondent.
“®ÈßAíåÄøáÕÞX ÄàVºîæM¿áJßÏ ÄàøíÕßÜ µ 15,50,000 øâÉ ÉÄßÈFíÜfJß ¥OÄßÈÞÏßøÕᢠ§Kí ÈßBç{Þ¿í ®ÈßAí
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RFA.No. 196 of 2018
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©¿ÎæMGíååØVAÞVÈßµáÄßÏá¢åæµÞ¿áJí ÈßøÞçfÉ¢ ¼zÎÞÏß
È¿KÈáÍÕßAáKÄßÈᢠçÕæù ÈßB{áæ¿ ÏçÅ×í¿¢ dµÏÕßdµÏBZ æºÏîáKÄßKá¢åÎxᢠÉGßµÏßW çºVJÕÙµ{ßçzÜᢠ§Kí ÎáÄW çÎÜÞW ÈßBZAÜïÞæÄ ®ÈßAí ÏÞæÄÞøáÕßÇ ¥ÕµÞÖÌÞicÄÏá¢, çÄVºîÏá¢, കകൈവശവവും §ÜïÞJÄᢠ¦µáKá .”
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handed over the possession of the property in favour of the first respondent.
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consequence of the sale as well as mortgage of the properties. So, it cannot be said that the appellant is an illiterate person. He is having sufficient experience in the property transaction. He cannot merely say that Ext.A1 deed was executed only as a security for the repayment of the loan transaction availed from the 2nd respondent in favour of the first respondent. The appellant has got dual argument. The first argument is that he has executed Ext.A1 as a security for the repayment of the loan transaction. Secondly he has taken a version that Ext.A1 is a mortgage deed. In
fact, he has no consistent case regarding the transaction. Apart from that the appellant has stated that he has executed additional agreement between himself and the 2nd respondent relating to repayment of the loan amount wherein it was agreed that a deed of re-conveyance would be executed in favour of the appellant.
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stated that he has executed Ext.A1 sale deed believing that he was executing a mortgage deed. Further he had deposed that he had not read Ext.A1 deed before its execution. According to him, he came to know that Ext.A1 is really a sale deed only at the time when he paid the last installment of the loan amount. In fact, the appellant has no consistent case regarding the execution of Ext.A1 document. Eventually, the appellant has executed Ext.A1 document in the name of the first respondent, free from all encumbrances and as evident from Ext.A1, the possession of the property was also handed over to the first respondent on the date of execution of the sale. So, the inconsistent case as advanced by the appellant is sufficient enough to cut root of his case.
deed executed in favour of the first respondent by the
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appellant. Even though the appellant tried to give evidence to the effect that Ext.A1 sale deed was executed as a security for the repayment of the loan amount, he could not able to succeed to prove the same. Even though he attempted to prove that the shed situated herein was leased out to PW2 and for this purpose PW2 was examined to prove the same, but, when Ext.A1 document was executed, the ownership of the property ceases to exist. The alleged lease executed between the appellant and PW2 has to be terminated on the day the appellant lost his ownership over the property. PW3 and PW4 are the workers of the appellant. According to them, they are doing manual work as per the direction of the appellant. But their evidence cannot be accepted as it will not improve the case of the appellant showing the possession of the property. The relationship between
the appellant and PW2 was only of a licensor and
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licensee. By virtue of Ext.A1 sale deed, the appellant
has lost his right, title and interest over the property.
agreement between the licensor and licensee terminates and there will not be any subsisting relationship between the appellant and PW2. In this
sense, Ext.A5 lease deed cannot have any validity in the eyes of law.
on the plaint and allow the relief. It is an admitted fact
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that the appellant had executed Ext.A1 sale deed in favour of the first respondent. Secondly he has averred that there is an additional agreement between himself and 2nd respondent relating to the reconveyance of Ext.A1 property in favour of the appellant. Thirdly, he had argued that he has paid the entire loan of Rs.2 crores 40 lakhs in favour of the 2nd respondent. Again, he has alleged that he has borrowed Rs.10 lakhs additionally from the 2nd respondent. Even though he has taken such a contention that he is having a huge amount as loan transaction, he could not able to succeed in producing any scrap of paper to prove the same. In fact, it is proved that Ext.A1 deed was executed after accepting sale consideration from the first respondent. He could not able to succeed in proving that the loan transaction was effected between himself and the 2nd respondent.
RFA.No. 196 of 2018
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appellant in order to succeed the case. But none of the grounds were established by the appellant. The appellant has miserably failed to establish the allegations as made against respondents 1 and 2. There is no convincing and acceptable circumstances to hold that Ext.A1 is a deed of mortgage. The entire evidence was evaluated by the court below and ultimately decided that the appellant is not entitled to get the decree as prayed for. Accordingly, the suit was dismissed. We have also a considered opinion that the appellant has failed to succeed in proving the allegations as levelled against respondents. Therefore, the judgment and decree passed by the court below is only to be upheld.
In the result, this appeal is dismissed.
Sd/- K.HARILAL, JUDGE
Sd/- ANNIE JOHN, JUDGE
RKM
2 issues framed by the court
Whether the deed of assignment executed by the appellant in favor of the first respondent is a mere security for a loan or a valid sale deed.
Whether the appellant has discharged the burden of proving the existence of a loan transaction and an additional agreement for re-conveyance.
ULLATTIL MANI
BINDU
ABHILASH JOSEPH
K. HARILAL
ANNIE JOHN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
