The High Court of Kerala dismissed the appeal filed by the plaintiff against an order exonating the second defendant due to privity of contract. The court observed that the transfer via settlement deed with bank deposit did not constitute a mortgage by deposit of title deeds under Section 58.
Appeal dismissed; second defendant exonerated from liability.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 1st DAY OF JULY 2022 / 10TH ASHADHA, 1944
RFA NO. 436 OF 2004 (B)
AGAINST THE JUDGMENT & DECREE DATED 10.03.2004 IN OS No.105/2001 OF
SUB COURT, NEYYATTINKARA
APPELLANT/PLAINTIFF:
LAWRANCE, S/o ALPHONSE, VADAKKE VEEDU (KAILAS), POOVAR DESOM, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADV SRI.BABY MATHEW
RESPONDENTS/DEFENDANTS:
1 STEPHINY, D/o SERJI VOIE, SANGAMAM, KOTTAPPURAM, VIZHINJAM DESOM, NOW RESIDING AT SHIJU BHAVAN, RALIVILLA, KADAKKULAM, MULLOOR P.O., MULLOOR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.
R1 & R2 BY ADV SRI.L.MOHANAN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA No.436 of 2004
2
JUDGMENT
The plaintiff came up in appeal aggrieved by the non-
grant of decree against the 2nd defendant and also that no
charge was created over the property of defendants for the decree amount by the trial court.
The 2nd defendant was exonerated from the liability due to privity of contract. The transfer effected by way of a settlement deed by the first defendant to his daughter, the 2nd defendant, would not fall under Section 53 of the
Transfer of Property Act simply on the reason that sufficient security was offered by way of deposit with a nationalised bank for the decree amount. The allegation
that the title deed of the documents were handed over itself will not create any charge over the property unless the same amounts to a mortgage by deposit of title deed governed by Section 58 of the Transfer of Property Act. No such case was advanced. Hence, appeal fails, dismissed. No
costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
3 issues framed by the court
Whether a settlement deed transferring property to a daughter constitutes a mortgage by deposit of title deeds under Section 58 of the Transfer of Property Act when security was offered via bank depos
Whether the trial court erred in exonerating the second defendant from liability due to lack of privity of contract?
Whether a charge was created over the defendants' property for the decree amount based on the deposit of title deeds?
2 provisions across 1 enactments
LAWRENCE, S/o ALPHONSE
STEPHINY, D/o SERJI VOIE
VELANSHYA JOHN, D/o STEPHINY
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
