Over 2 lakh Indian cases. Search powered by Google!

Case Details

K.AYYASAMY versus J.PERUMAL AMMA

High Court of Madras

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


K.Ayyasamy v. J.Perumal Amma - Civil Revision Petition PD (MD) No.221 of 2004 [2007] RD-TN 2394 (19 July 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 19/07/2007

CORAM

The Hon'ble Mr. Justice S.NAGAMUTHU

Civil Revision Petition PD (MD) No.221 of 2004

and

C.M.P.(MD) No.1012 of 2004

K.Ayyasamy .. Petitioner Vs.

J.Perumal Ammal .. Respondent Prayer

Revision filed under Article 227 of the Constitution of India against the order dated 19.11.2003 passed in I.A.No.265 of 2004 in O.S.No.5 of 2000 on the file of the learned Subordinate Judge, Virudhunagar (presently O.S.No.84 of 2004 on the file of the learned District Munsif, Virudhuangar). For Petitioner .... Mr.S.Subbiah For Respondent .... Mr.Michal Bharathi

:ORDER



The petitioner who is the plaintiff in O.S.No.5 of 2000, on the file of the learned Subordinate Judge, Virudhunagar, has come forward with this revision challenging the order dated 19.11.2003 made in I.A.No.265 of 2004. The respondent is the sole defendant in the suit.

2. The petitioner filed the suit for recovery of a sum of Rs.77,500/- from the defendant with interest. The allegation is that on 14.06.1997, the defendant borrowed a sum of Rs.50,000/- from the plaintiff and subsequently on the same day, the defendant executed a security creating equitable mortgage by acknowledging the deposit of title deed, namely rectification deed relating to the schedule property, which was handed over by the defendant to the plaintiff.

3. In the written statement, the respondent has denied the borrowal of Rs.50,000/- on 14.06.1997 and also denied the creation of the equitable mortgage and deposit of title deed. She has further stated that for the purpose of measuring the property belonging to the plaintiff, to verify the four boundaries, the plaintiff got the rectification deed, namely, the title deed and retained the same stealthily. The defendant has made a counter claim against the plaintiff for the relief of mandatory injunction to direct the plaintiff to return the above rectification deed to the defendant. She has also paid the court fee for the said counter claim.

4. During the trial of the case, the plaintiff wanted to mark and prove the document dated 14.06.1997 allegedly executed by the defendant. It is to be remembered that in the written statement, the defendant denied the execution of the said document. Even for marking the said document, the defendant opposed on the ground that even assuming that the document is true and genuine, the same is inadmissible in evidence as the same has not been registered as required under Section 17 of the Registration Act. In those circumstances, the plaintiff filed I.A.No.265 of 2003, requesting the Court to mark the said document in evidence and allow him to prove the same. The respondent/defendant opposed the same again reiterating the stand that the document is inadmissible in evidence for want of registration. The learned District Munsif, holding that the said document requires registration and the same is inadmissible in evidence, has ultimately dismissed the said I.A. Challenging the same, this revision has been filed.

5. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent.

6. The core issue to be decided by this Court is, whether the finding of the lower Court that the document in dispute requires registration is correct or not.

7. The learned counsel for the petitioner would submit that the question invoked is a mixed question of law and fact and therefore, the lower Court ought to have allowed the parties to let in evidence in respect of the facts involved, and the lower Court should have decided the said mixed question of law as well as fact. Since, the lower Court has not afforded any opportunity to the petitioner to let in evidence, and since the Court has decided the question as if it is a question of law simpliciter, the order of the lower Court has to be set aside, the learned counsel arguned. He would further contend that the lower Court has simply gone through the document in question and has come to the conclusion that the document is a deed creating equitable mortgage between the parties and so, the same requires registration, without considering the intention of the parties more particularly when the very execution of the document itself is in dispute. The learned counsel would rely on the judgments reported in 2005 (4) L.W. 418 (M/s.Jayalakshmi Trading Co. v. Krishnamurthy & others); Volume 100 L.W. 4 (Nanjappa, H.G v. M.F.C Industries (P) Ltd.,) and 1961 II M.L.J 328 (Indersain v. MD.Raza Gowher).

8. Per contra, the learned counsel for the respondent would submit that the finding of the lower Court that the document in dispute requires registration is sustainnable, since a plain reading would leave no doubt that it represents bargain between the parties. The learned counsel would rely on the Judgment of a Division Bench of this Court reported in 1972 II M.L.J 319 (Modern Housing Construction v. Alagappa Textiles) to submit that when there is no doubt regarding the nature of the document by having a plain reading of the same, it is no more a mixed question of fact and law and it is a simple question of law alone.

9. I have considered the rival contentions made by the learned counsel for both parties.

10. At the outset, on a reading of the document to ascertain its nature, in the case on hand, it is absolutely necessary at this juncture to refer to the pleadings of the rival parties. According to the plaintiff, on 14.06.1997 a sum of Rs.50,000/- was borrowed. But, the same was disputed by the defendant. So, this is a question of fact which is to be resolved only on letting evidence by both parties. It is the further case of the plaintiff that subsequently, on the same day, the title deed namely rectification deed dated 08.06.1990 was deposited by the defendant and the document in question was executed only to have evidence regarding the said past transaction. According to the plaintiff, the document does not form part of the bargain between the parties. The case of the defendant is that no such title deed was deposited creating equitable mortgage and the document in question itself was not at all executed. Therefore, the question, which is a simple question of fact, whether the title deed was deposited creating equitable mortgage and the document in question was executed are also to be decided only by way of letting evidence at the appropriate stage.

11. In the backdrop of the above dispute, the document in question is to be now read to find out the nature of the transaction as to whether the document represents the bargain thereby requiring registration or it has got evidential value of the transaction, since it does not form part of the bargain.

12. On a plain reading of the said document, I am of the considered view that it does not give any indication to find out the intention of the parties. The relevant portion of the document is as follows:- **ehdJ jPapy; vd;Dila FLk;g mtru njitapd; fhuzkhf ehd; jhjfsplk; vd;Dila gj;jpu jgrpy; fz;l brhj;ij 13. The contents of the document would show that a sum of Rs.50,000/- was borrowed only by way of mortgaging the property and it would also show that the documents were deposited on the same day. By taking the Court through the above document, the learned counsel for the petitioner would interpret the same by saying that the borrowal was a different earlier transaction, deposit of title deed is a subsequent transaction and the execution of the document is the last one different from the first two transactions.

14. Per contra, the learned counsel for the respondent would submit that though it is the case of the plaintiff that money was borrowed first and title deed was deposited secondly, and then, the document was executed, a reading of the document would show that the money itself was borrowed only by means of creating a equitable mortgage. For any such mortgage, deposit of title deed should have taken place first and then, the document in question should have been executed. Therefore, according to the learned counsel for the respondent, exchange of money, exchange of document and execution of the disputed document form part of the same transaction arising out of one and the same bargain and therefore, the document requires registration under Section 17 (b) of the Registration Act.

15. To the mind of this Court, a plain reading of the document does not give a clear indication as to whether the borrowal was made first as claimed by the plaintiff followed by deposit of title deed and then the execution of the document had taken place or not. Since the borrowal, the deposit of title deed creating equitable mortgage and the execution of the document are all in dispute, first of all, evidence has to be let in to prove these facts. Only if it is proved that there was borrwal followed by deposit of title deed and then execution of the document, then the Court could decide from the nature of the transactions as proved on facts by means of evidence whether the document requires registration or not. I am of the considered view that in the given case, the question involved is a mixed question of fact and law, if only the parties are allowed to let in evidence, to prove the disputed facts, namely whether the money was borrowed, followed by creation of mortgage by deposit of title deed and execution of the document, it would be possible to decide the question of law as to whether the document requires registration or not simultaneously deciding the question of fact also.

16. The learned counsel for the petitioner has placed reliance on the judgment of a Full Bench of this Court reported in 1961 II M.L.J 328 (cited supra), wherein this Court has held as follows:- "In the case of an equitable mortgage, if the documents had been deposited before the execution of the writing reciting it, that is, if the documents had been handed over to the creditor as security for the loan and the writing or letter merely recorded a past transaction, there would be no need for registration of the letter merely recorded a part transaction, there would be no need for registration of the letter for a valid equitable mortgage. Where, however, there was no past transaction of actual deposit of title deed before the execution of the letter relied on, and the letter is the only evidence of the mortgage and the only document by which the mortgage was created, the letter has to be registered and if it is not registered, it cannot be admitted in evidence to prove a valid equitable mortgage by deposit of title deed."

17. The above legal principle laid down by a Full Bench squarely applies to the facts of the present case. As already pointed out in this case, it is a question of fact as to whether documents were deposited before the execution of the writing reciting it, thereby recorded a past transaction or whether there was no past transaction of actual deposit of title deed before the execution of the document and the document is the only evidence of the mortgage is to be decided only through evidence to be let in. But, the lower Court has hurriedly decided the question without waiting for the evidence to be let in by both parties to prove these facts, which are very seriously disputed in this case.

18. The learned counsel for the petitioner would rely on the judgment reported in Volume 100 L.W. 4 (cited supra), wherein in paragraph No.18 this Court has held as follows:-

"There is nothing on the facts of the present case to show that the memorandum accompanying the title deed was intended to be a contract of mortgage reduced to writing by the parties which meant also the plaintiff. The memorandum cannot be so read as meaning that the plaintiff and defendant had agreed to reduce the transaction of mortgage to writing. The memorandum which is signed by the defendant cannot be construed as an integral part of the transaction of mortgage or intended to create an interest in the subject matter of the mortgage."

19. The learned counsel for the petitioner would submit that in the case on hand also there is nothing on record that the parties intended to create an equitable mortgage by execution of the document. When the very execution of the document itself is in dispute, I am of the considered view that, the said dispute could be resolved by way of evidence and if the execution of the document is proved, then the Court would be required to gather the intention of the parties to decide whether the document requires registration as contemplated under Section 17(b) of the Registration Act. Hence,I have to hold that the question involved in the case needs to be resolved only after recording evidence of both the parties.

20. Lastly, the learned counsel for the petitioner would rely on the Judgment of this Court reported in 2005 (4) L.W. 418 (cited supra). In the said Judgment also, this Court has held that the nature of the transaction cannot be decided by reading out the recitals, as the question is a mixed question of fact and law. This Court has held that the said question could be determined when the parties adduce oral and documentary evidence. The view expressed in the said case squarely applies to the facts of the present case also.

21. However, the learned counsel for the respondent would rely on the Judgment of a Division Bench of this Court reported in 1972 II M.L.J 319 (cited supra). In the said judgment, the Division Bench in a case involving more or less similar set of facts has held that the real test to find out whether a memorandum requires registration or not, is to ascertain whether the memorandum represents the bargain between the parties.

22. The learned counsel for the respondent would take me extensively through the entire judgment and submit that it is not at all necessary in the case on hand to let in evidence to decide the said question, since a plain reading of the document would undoubtedly show that the deposit of title deed and execution of the document form part of the bargain in the same transaction and therefore, the lower Court was right in dismissing the said I.A. But, I am not able to agree with the argument of the learned counsel for the respondent. As rightly pointed out by the Division Bench of this Court, the relevant question is to find out whether the execution of the document forms part of the same transaction. I would have no hesitation to hold that the said question can be decided by mere reading of the recitals of the document if there is no dispute between the parties regarding the transactions and the execution of the document. The Division Bench has decided the said question in the reported case not only on the basis of the recitals but also on the basis of evidence. It is to be seen that in the reported case, evidence had already been recorded and there was no dispute regarding the transaction and so there was no difficulty for the Court to resolve the issue. But in our case at the preliminary stage itself even before any evidence is let in by the parties in respect of the disputed question of fact, the trial Court has rejected the document simply by going through the recitals of the document. There can be no second opinion that the recitals of the document may at times some would lend support to know the intention of the parties. In the case on hand, reading the recitals of the document would not clearly indicate the intention of the parties more so because there is a dispute regarding the execution and the other transaction.

23. Therefore, in my considered view, the lower Court ought to have permitted the parties to file their objections and decided the nature of the document at the time of final judgment. While holding so, I hasten to add that I am not expressing any opinion as to whether the document requires registration or not and whether the document in dispute is admissible in evidence or not. As observed earlier, these questions are to be decided by the learned District Munsif, on the basis of the evidence to be let in by the parties and on going through the recitals of the document. For all these legal and factual positions, I am of the clear opinion that the order of the lower Court deserves to be set aside.

24. In the result, the order passed by the learned District Munsif, Virudhunagar, dated 19.11.2003, passed in I.A.No.265 of 2004 in O.S.No.5 of 2000, is set aside and the lower Court is directed to mark the disputed document in evidence subject to proof by recording the objections of the adverse party and decide the question whether the document is admissible in evidence or not in the final judgment. The lower Court is further directed to afford opportunity to both parties in respect of the questions involved in the said I.A.

25. With the above directions, the civil revision petition is allowed. No costs. Consequently, connected C.M.P is closed.

jbm

To,

The learned District Munsif cum

Judicial Magistrate,

Thirumayam.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.