Dismissed

K.Rajan v. K.Radhamani Amma

Kerala HC16 Aug 2019RFA/408/2008

Case brief

AI extract

What is this about?

In this regular first appeal, the Allahabad High Court (corrected: Kerala High Court) examined evidence regarding a loan and alleged mortgage. The court held that the appellant failed to prove the execution of the disputed promissory note by the deceased borrower or the handing over of funds. Consequently, the appeal challenging the trial court's dismissal was dismissed without merits.

What did the court decide?

The appeal was dismissed. The parties were directed to bear their respective costs.

K.Rajan Vs K.Radhamani Amma — Contract and Commercial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941

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RFA.No.408 OF 2008

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AGAINST THE JUDGMENT IN OS 404/2002 DATED 22-01-2008 of SUB COURT, KOZHIKODE

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APPELLANT/PLAINTIFF:

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K.RAJAN, AGED 57 YEARS, S/O.K.KAMALAKSHI AMMA, RESIDING AT SREENIVAS, NAIRTHARA NEMMARA P.O., NEMMARA VILLAGE, CHITTUR TALUK, PALAKKAD, DISTRICT.

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BY ADVS.

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SRI.P.SANTHALINGAM (SR.) SRI.K.CHANDRACHOODAN (ERNAKULAM) SRI.S.SHARAN

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RESPONDENTS/DEFENDANTS 1 TO 7:

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1 K.RADHAMANI AMMA, AGED 64 YEARS, W/O.LATE V.GOPALAN NAIR, RESIDING AT 8/70, MUTHALIAR STREET, SUNDARAPURAM,, COIMBATORE DISTRICT.

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2 K.NANDAKUMAR, AGED 42 YEARS S/O.LATE GOPALAN NAIR, RESIDING AT -DO- -DO-

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3 K.HARIKUMAR, AGED 39 YEARS, S/O. DO. RESIDING AT -DO-

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4 K.VINAYAKUMAR AGED 26 YEARS S/O. -DO- RESIDING AT -DO-

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5 V.P.SATHYABHAMA AMMA, AGED 60 YEARS W/O.LATE V.GOPALAN NAIR, BHIMA NIVAS, CHAKKANTHARA, NEMMARA, CHITTUR TALUK.

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6 M.PRASAD, AGED 32 YEARS S/O.LASKSHMIKUTTY AMMA, RESIDING AT MELEVEEDU, MANGALAM AMSOM AND DESOM, VADAKKANCHERY NO.II VILLAGE, ALATHUR TALUK.

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7 SREEDEVI, AGED 56 YEARS D/O.AMMUKUTTY AMMA, RESIDING AT MARAGASSERI, HOUSE, KANIMANGALAM NEMMARA, CHITTUR TALUK, PALAKKAD

RFA.No.408 OF 2008

DISTRICT.

R1 BY ADV. SRI.S.KRISHNA PRASAD AYALUR R1 BY ADV. SMT.MINI.V.A. R1 BY ADV. SRI.K.B.PRADEEP R1 BY ADV. SMT.S.SUJANA

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA.No.408 OF 2008

JUDGMENT

The plaintiff in O.S.No.404/2002 on the file of the Subordinate Court, Palakkad has come up with this appeal challenging the judgment and decree dated 22.1.2008 passed against him.

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The parties are referred to as per their ranking before the court below.

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The facts of the case in brief are as follows:

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On 8.3.2001 the plaintiff had advanced a sum of

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Rs.2,50,000/- to one Gopalan Nair. On the very same day he executed a promissory note (on 8.3.2001) agreeing to repay the sum on demand with interest at the rate of 18% per annum. Subsequently, Sri.Gopalan Nair created equitable mortgage of his property by deposit of title deed of his property on 15.12.2001. Sri. Gopalan Nair expired on 25.4.2002. The defendants 1 to 5

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are the legal heirs of Sri.Gopalan Nair and the 1^st defendant is

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RFA.No.408 OF 2008

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the divorced wife of Sri.Gopalan Nair .He divorced by her in the year 1971. The defendants 1 to 4 have sold the property mortgaged on 4.10.2002 as per the registered sale deed No.1995/2002 of S.R.O, Nenmara without disclosing the fact that it was mortgaged. The 6^th defendant is the brother-in-law of the 3^rd defendant and he purchased the property fully knowing the fact that it was mortgaged with the plaintiff. The sale deed was executed with the intention to defeat the interests of the plaintiff over the property. Sri.Gopalan Nair borrowed money for purchasing the rights of the co-owners in the plaint schedule property. A document was executed by the co-owners on 9.3.2001 and registered as document No.552/2001 of Nenmara, S.R.O and as the value of the properties of the co-share holders, he paid Rs.1 lakh. The entire property has now been sold to the 6^th defendant for a consideration of Rs.30,000/-.The document is a sham document and the 6^th defendant was impleaded to redeem the mortgage and to make the decree binding on him. Therefore, the suit has been filed for realization for money. The

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7^th defendant was impleaded as he had filed the suit before the

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RFA.No.408 OF 2008

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Sub court Palakkad as O.S.No.398/2003 where the property was attached.

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The defendants 1 to 4 resisted the suit, inter alia contending that the allegation that an amount of Rs.2,50,000/was received as loan from the plaintiff on 8.3.2001 on executing a promissory note by Sri. Gopalan Nair is not correct . No amount was borrowed as alleged and the signature in the promissory note produced before the court is not the signature of late Gopalan Nair and it is a forged document. So also he had no necessity to mortgage the plaint schedule property to the plaintiff as alleged and no mortgage was created by him on 15.12.2001 and hence, the plaintiff is not entitled to realize any amount from the defendants. Late Gopalan Nair was residing with the 5^th defendant at Nenmara. In fact, the defendants had purchased the shares of the co-owners for constructing a house in that property and paid Rs.10,000/-on 8.1.2001 and Rs.78,000/- on 9.1.2001. Subsequently he was hospitalized and he expired on 25.4.2002. It was told by Sri.Gopalan Nair that he had kept the title deed relating to the property in the house of

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RFA.No.408 OF 2008

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the 5^th defendant as he was residing in her house. When the defendants demanded back, she refused to hand over the same. She had no right over the property left back by late Gopalan Nair. The defendants have sold the property to the 6^th defendant as per assignment deed No.1995/2002.The plaintiff is not entitled to get a decree as prayed for.

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The 6^th defendant adopted the same contentions though he filed a separate written statement.

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Before the court below on the side of the plaintiff Pws1 and 2 were examined and marked Exts.A1 to A4 on his side. On the side of the defendants, Dws1 and 2 were examined and Exts. B1 to B4 were marked. Exts.X1 to X3 were also marked.

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The court below on appreciation of the evidence concluded that the plaintiff is not entitled to get a decree for realization of money as prayed for. On the said finding the suit was dismissed. Aggrieved by the said judgment and decree, the plaintiff has come up with this appeal.

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Heard Sri.P.Shanthalingam, the learned counsel for the plaintiff and V.A.Mini , the learned counsel for the defendants.

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RFA.No.408 OF 2008

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The suit has been filed by the plaintiff for realization of money on the basis of Ext.A2 promissory note, against one V.Gopalan Nair. During the pendency of the suit he expired and his legal heirs and representatives were impleaded as defendants 1 to 5. Defendants 6 and 7 were also impleaded later as the subsequent purchasers of the property owned by late Gopalan Nair. On a perusal of the records available it could be seen that the suit was mainly filed by the plaintiff on the basis of Ext.A2 promissory note alleged to have been executed on 8.3.2001 by Sri.Gopalan Nair.

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The definite case of the plaintiff is that he had advanced an amount of Rs.2,50,000/- to Sri.Gopalan Nair after availing a loan for Rs.2,50,000/- from State Bank of Travancore, Nenmara branch. In order to substantiate his case that he availed a loan of Rs.2,50,000/- so as to advance the amount to the defendant, had produced Ext.A1 passbook. Of course a perusal of Ext.A1 passbook would show that he was having an amount of Rs.2,50,000/- in his account No.92/2000 of SBT, Nenmara branch. But it is revealed from his passbook that he was having

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RFA.No.408 OF 2008

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the said amount with him till the month of February 2003 and the last entry would show that a sum of Rs.2,51,471/- was in his account in the month of February 2003. So Ext.A1 passbook will not fortify his case that he had availed a loan of Rs.2,50,000/from SBT Nenmara Branch so as to advance the same to the defendant on his request. Now the question to be looked into is whether the plaintiff could substantiate his case that Gopalan Nair had executed Ext.A2 and received an amount of Rs.2,50,000/- from the plaintiff. As PW1 he deposed before the court that Sri.Gopalan Nair had received the amount in order to purchase the shares of his sisters in the property by paying the amount. But the evidence adduced will not show that Sri.Gopalan Nair had to borrow the amount from the plaintiff so as to pay money to the share holders so as to acquire the shares of the co-owners of the property in his name.

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The plaintiff in order to support his case had examined PW2 a document writer. According to the plaintiff ,the handwriting in Ext.A2 promissory note is as that of PW2. PW2 deposed that on 8.3.2001 Sri. Gopalan Nair and the plaintiff

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RFA.No.408 OF 2008

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came to his office and requested him to prepare a promissory note and as requested by them he had prepared the same and Sri.Gopalan Nair had affixed his signature in the document. He had also deposed that he had witnessed the plaintiff handing over the amount to Sri.Gopalan Nair after execution of the document. But when he was cross examined he deposed that he had only witnessed the plaintiff handing a plastic cover to Sri.Gopalan Nair. He do not have a case that he had actually witnessed the plaintiff handing over a sum of Rs.2,50,000/- to Sri.Gopalan Nair on execution of Ext.A2 promissory note. So his evidence is not sufficient and reliable so as to conclude that the plaintiff had actually handed over an amount of Rs.2,50,000/- to Gopalan Nair after execution of Ext.A2 promissory note.

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It is also to be noted that he had deposed that he used to enter the details of all the documents prepared by him in a ledger maintained by him and he will able to give the details only on perusal of the ledger maintained by him. So on the basis of the evidence, it is not possible to infer that the plaintiff had actually handed over an amount of Rs.2,50,000/- to Sri.Gopalan

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RFA.No.408 OF 2008

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Nair by virtue of Ext.A2 promissory note prepared by PW2. The defendants have a definite case that the signature found in Ext.A2 document is not as that of Sri.Gopalan Nair and in order to substantiate their contention, they relied on Exts.X1 to X3 documents. Ext.X1 document would establish the fact that Gopalan Nair had a joint account with Smt.V.P.Sathyabhama, the 5^th defendant in Canara Bank,Nenmara branch . A perusal of the the records would further reveal that the 5^th defendant was maintaining an account in Canara Bank and on her request, her account was converted as a joint account in the name of herself and late Gopalan Nair. Ext.X2 is the another loan application submitted by Sri.Gopalan Nair before Nedungadi Bank, Nenmara Branch. A mere comparison of the admitted signature of Sri.Gopalan Nair in Ext.X1 with the disputed one would indicate that the signatures are different . Same is the case of Ext .X2 and Ext.X3 .Of course these documents have been produced to show that signature in Ext.A2 is not that of Sri.Gopalan Nair. But ,no expert opinion was taken out in the case. A mere perusal of the documents would show that there is much difference to the

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RFA.No.408 OF 2008

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signatures found in Exts.X1 to X3 with Ext.A2.That be so the burden to prove that Ext.A2 is that of Gopalan Nair is definitely on the plaintiff, but no reliable and cogent evidence was adduced from the side of the plaintiff to substantiate his plea.

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The next point to be looked into is whether the production of Ext.A3 document dated 9.3.2001, a lease deed executed by one Krishnankutty to Gopalan Nair would substantiate the case of the plaintiff that the document was deposited by Sri.Gopalan Nair to create mortgage by deposit of title deed for receipt of the amount. Ext.A3 dated 9.3.2001 is executed by one Dhamayanthi Amma and others in favour of Gopalan Nair, releasing their right over the property involved in the document. According to the defendants, Gopalan Nair was residing along with the 5^th defendant, his second wife and he had divorced his first wife in the year 1971 itself and the plaintiff had managed to obtain the lease deed from the 5^th defendant by colluding with her and thus produced it before the court. Of course, Ext.A3 is the original deed which stands in the name of Sri.Gopalan Nair. But on a mere production of Ext.A3 by the

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RFA.No.408 OF 2008

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plaintiff without any supporting evidence ,it is not possible to conclude that the plaintiff colluded with the 5^th defendant and obtained the document and then produced the same before the court. She remained absent in the suit though she was made as a party by the plaintiff. So in the absence of the reliable evidence before the court, the mere production of Ext.A3 document is not sufficient to conclude that Sri.Gopalan Nair had created mortgage by depositing his title deed before the plaintiff and then received money from him. So in the absence of reliable evidence, the finding of the court below that the document will not support the case of the plaintiff to prove that a mortgage had been created by deposit of title deed does not warrant an interference by this Court.

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On a meticulous evaluation of the documents available on record, I find that the plaintiff could not substantiate his case that Sri.Gopalan Nair had borrowed a sum of Rs.2,50,000/- from the plaintiff after executing Ext.A2 promissory note. So also it is not possible to infer that he had deposited the title deed of his property before the plaintiff to create equitable mortgage for his

RFA.No.408 OF 2008

property.

In view of the above circumstances, I do not find any reason to interfere with the findings rendered by the court below. The appeal is filed without any merits and hence liable to be dismissed.

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Accordingly the appeal is dismissed . The parties shall bear their respective costs.

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Sd/-

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SHIRCY V. JUDGE

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smm

K.Rajan v. K.Radhamani Amma

Case brief

What is this about?

What did the court decide?

K.Rajan v. K.Radhamani Amma

Case brief

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