In this second appeal, the court examined a claim for redemption of an alleged oral usufructuary mortgage. Finding that the plaintiffs failed to prove the existence of an invalid mortgage and that the suit was barred by limitation, the High Court upheld the lower courts' dismissal of the appeal.
Second appeal dismissed without being admitted; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.10.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.No. 1041 of 2019
1.Mangathil 2.Periasamy 3.Andjale 4.Selvy 5.Porquile @ Purani 6.Ammakannu 7.Ambiga 8.Radha 9.Jayalakshmy ..Appellants/Appellants/Plaitniffs Vs. 1.Palaniammal 2.Chandra ..Respondents/Respondents/Defendants Prayer: Memorandum of Second Appeal filed under Section. 100 of C.P.C. against the judgment and decree dated 27.03.2019 in A.S.No.89 of 2018 on the file of the Principal Sub-Ordinate Judge, Puducherry thereby confirming the judgment and decree dated 10.09.2018 in O.S.No. 617 of 2013 on the file of the First Additional District Munsif, Puducherry.
For Appellants : Mrs.V.Kamala Kumar
J U D G M E N T
The plaintiffs in O.S.No.617 of 2013, who sought for a decree for recovery of possession upon dismissal of the suit by the lower Appellate Court has come up with this second appeal.
oral usufructuary mortgage in favour of the first defendant. It is also claimed that the other co-owner Iyyanarappan died on 25.12.2008 leaving behind the plaintiffs 6 to 9 as his legal heirs to succeed and inherit his one half share in the property. Despite demand made by the plaintiffs' to handover possession, upon receipt of a sum of Rs.2,000/-, the first defendant did not come forward to handover the possession hence, the plaintiffs had come up with the above suit for recovery of possession.
in 2015(1) CTC 577. In the case on hand, the plaintiffs have come to Court with the specific case that the defendants were put in possession of the property as usufructuary mortgagees having advanced a sum of Rs.2,000/- in the year 1985. Admittedly, the mortgage is not a registered mortgage, it is claimed that it was an oral mortgage.
“35. In view of the above settled possession of law, one thing is crystal clear that form the date of entering into the invalid mortgage, if the so called mortgagor wants to recover the possession, he can file a simple suit for recovery of possession and not a suit for redemption of mortgage as there is no valid mortgage. If he fails to do so within twelve years, on the expiry of twelve years period, if the so called mortgagee becomes an actual mortgagee thereby acquiring all the rights of mortgagee by prescribing the same by adverse possession asserting mortgagee rights thereafter, the mortgagor can only file a suit for redemption of mortgage and for recovery of possession and not a simple for recovery of possession.
mortgage in the year 2005. According to the written statement, there was no such oral mortgage and thus, he never had the animus that he was in possession of the property to assert his mortgagee rights. Thus, his possession was not adverse for the purpose of asserting mortgagee rights. Therefore, in the year 2005, there id not come into being a full fledged mortgage and thus, Mr.Muniyan did not acquire mortgagee rights. Therefore, the remedy for Mrs.Arayee is only to file a simple suit for recovery of possession, which she has rightly done in the instant case. Mr.Muniyan has not even pleaded adverse possession either for prescribing mortgagee rights or to prescribe title. Therefore, though he was in possession continuously from the year 1993, he has not perfected mortgagee rights neither has he perfected title by adverse possession. He has only pleaded that his wife Mrs.Dharani Ammal has been in possession under the sale agreement which has been found to be false.”
Sd/Assistant Registrar(CS-V)
//True copy//
Sub Assistant Registrar
kkn
To:1.The Principal Sub-Court, Puducherry. 2.The I-Additional District Munsif, Puducherry. Copy To The Section Officer, VR Section, High Court, Madras +1cc to Mrs.V.Kamala Kumar, Advocate SR.No.89864 +1cc to Mr.J.Kumaran, Advocate SR.No.89435 S.A.No. 1041 of 2019 RJI(CO) GMY(10/01/2020)
3 issues framed by the court
Whether the plaintiffs established the existence of an oral usufructuary mortgage necessary for a suit for redemption.
Whether the plaint for redemption is maintainable given the defendants' possession and limitation bars.
Whether to admit or dismiss the second appeal against the dismissal of the suit for recovery of possession/redemption.
Colour shows how this judgement treated each authority
Dharini Ammal Vs. Arayee 2015(1) CTC 577Referred¶5
3 provisions across 3 enactments
Mangathil Periasamy and others
Palaniammal and Chandra
R. Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
