1. Dispute over redemption of anomalous mortgage of property where documents styled as sale deeds were executed as security for loans, with allegations of fraud and undue influence. (Para 2000126070001 , 2000126070003 , 2000126070004 , 2000126070005 )
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1996 Supreme(AP) 374
Andhra Pradesh High Court
Krishna Saran Shrivastav, J.
Habeeb Khan - Appellant
Versus
Valasula Devi - Respondent
Decided On : 04-25-96
Headnote:Transfer of Property Act - Section 58 - Mortgage - Interest exceeding principal - By applying rule of Damdupat , Creditor debarred from recovering interest amount which is more than the principal.
Held : There is no evidence in rebuttal therefore presumption of fictional death or civil death of K. Ramankutty alias Lingam under S. 108 of the Evidence Act can be safely drawn after the year 1987 and this presumption tantamounts to physical death in the eye of law for giving the heirs of K. Ramankutty alias Lingam right to file the suit.
Legal Category Hierarchy
-
property law
-
mortgage law
- anomalous mortgage (Para 2000126070014, 2000126070017, 2000126070049, 2000126070050, 2000126070051, 2000126070053, 2000126070055, 2000126070056, 2000126070058, 2000126070059)
- redemption of mortgage (Para 2000126070001, 2000126070059, 2000126070061, 2000126070066, 2000126070067, 2000126070073, 2000126070075)
- usufructuary mortgage (Para 2000126070050, 2000126070058)
-
sale of property
- sale deeds as security (Para 2000126070052, 2000126070053, 2000126070055, 2000126070056)
-
mortgage law
-
civil procedure
-
joinder of parties
- necessary parties (Para 2000126070060, 2000126070061, 2000126070067)
- misjoinder (Para 2000126070006, 2000126070060)
- limitation (Para 2000126070006, 2000126070066)
- jurisdiction (Para 2000126070006, 2000126070068)
- court fees (Para 2000126070068, 2000126070069)
-
joinder of parties
-
evidence
- oral and extrinsic evidence (Para 2000126070015, 2000126070016, 2000126070017, 2000126070018, 2000126070019, 2000126070020, 2000126070023)
- fraud in judicial proceedings (Para 2000126070036, 2000126070037, 2000126070039, 2000126070040, 2000126070042, 2000126070043)
-
contract law
- undue influence (Para 2000126070041, 2000126070042, 2000126070043)
Table of Contents
2. Appellants argue documents are genuine sale deeds and a necessary party was not impleaded; respondents argue documents are anomalous mortgage deeds obtained through fraud and undue influence. (Para 2000126070005 , 2000126070006 , 2000126070061 )
3. Preliminary decree for redemption of anomalous mortgage granted; appeals dismissed; reconveyance and possession directed upon payment of mortgage amount with interest. (Para 2000126070075 )
4. Whether documents executed as sale deeds are in reality anomalous mortgage deeds?
The court held that oral evidence is admissible to prove the true nature of a transaction when documents on their face are sale deeds but the real transaction was a loan secured by mortgage, making them anomalous mortgage deeds. (Para 2000126070014 , 2000126070016 , 2000126070017 , 2000126070018 , 2000126070019 , 2000126070020 , 2000126070023 , 2000126070049 , 2000126070050 , 2000126070058 )
5. Whether a decree obtained by practising fraud through blank papers can be set aside?
The court held that fraud vitiates judicial proceedings and a decree obtained by tricking the plaintiff into signing blank papers, preventing them from contesting the suit, is liable to be set aside. (Para 2000126070036 , 2000126070037 , 2000126070039 , 2000126070040 , 2000126070042 , 2000126070043 )
6. Whether non-joinder of a necessary party defeats a suit for redemption of mortgage?
The court held that not all mortgagees are necessary parties to a redemption suit, and misjoinder does not defeat the suit under Order 1 Rule 9 of the Code of Civil Procedure. (Para 2000126070060 , 2000126070061 , 2000126070067 )
7. Whether a suit for redemption of anomalous mortgage is maintainable when based on registered documents?
The court held that redemption of anomalous mortgage is maintainable even based on registered documents, as the document styled as a sale deed is in reality an anomalous mortgage deed. (Para 2000126070057 , 2000126070058 )
8. Whether the suit for redemption is within limitation and the court has jurisdiction?
The court held that the right to redeem accrued during pendency of the suit, defeating the limitation bar, and the District Judge has inherent jurisdiction to try suits of any valuation. (Para 2000126070006 , 2000126070066 , 2000126070068 )
K. S. SHRIVASTAV, J.
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( 1 ) THE defendants in OS No. 24/84 on the file of the Additional District Judge, Adilabad, are the appellants in this appeal. A preliminary decree for redemption of anomalous mortgage of a double storeyed building bearing No. 4-3-3 (old) and 3-7-68 (new) situated in Adilabad (hereinafter called as amba Bhavan ) and the adjoining plot as also a decree for cancellation of the decree passed in OS No. 49/78 have been passed against them.
( 2 ) THIS appeal shall govern also the disposal of the appeal AS 2702/89 arising out of OS 11/84 and the appeal AS 2703/89 arising out of OS 5/89 because all the three suits have been disposed by the common judgment passed by the Additional District Judge, Adilabad. In OS No. 5/89, suit of the 2nd defendant for permanent injunction has been dismissed and in OS No. 11/89, suit of the 3rd defendant for specific performance of the contract of the upper storey of Amba Bhavan has been dismissed.
( 3 ) IT is an admitted fact that one K. Ramankutty alias Lingam is the husband of the 1st plaintiff Smt. Valsula Devi and father of the remaining 5 plaintiffs of OS No. 24/84. Similarly, the 1st defendant was the husband of the 2nd defendant and father of the remaining defendants Nos. 3 to 7 of the suit. It is also an admitted fact that the 1st defendant Habeeb Khan expired during the pendency of the suit and before the commencement of evidence in this case.
( 4 ) IT is no longer in controversy before me that in OS No. 2/ 72, one Chinna Manyiamma and K. Ramankutty alias Lingam were declared co-owners having equal share in Amba Bhavan and in appeal before the High Court Chinna Manyiamma transferred her half share in Amba Bhavan for a consideration of Rs. 29,000. 00 (Rupees Twenty Nine Thousand only) in favour of K. Ramankutty alias Lingam vide a compromise decree passed by the High Court on 14-4-1978.
( 5 ) THE plaintiffs in OS 24/84 have alleged that in order to pay Rs. 29,000. 00 to Chinna. Manyiamma, the 1st plaintiff and her husband K. Ramankutty alias Lingam were in need of money and the 1st defendant agreed to advance a loan of Rs. 30,000/ - to them on condition that they should execute an agreement to sell Amba Bhavan in favour of the defendants 3 and 4 and handover the possession to him. The loan amount would carry interest at the rate of 18% per annum. After a period of five years accounts would be settled and after satisfying the loan and interest, if remaining due, the 1st defendant would re-convey and re-deliver the possession of Amba Bhavan to them. Because they had no other alternative and they were in dire need of money, on 31-3-1978 the 1st defendant obtained the agreement to sell (Ex. A-1) in favour of his aforesaid sons by K. Ramankutty alias Lingam and paid a loan of Rs. 35,000. 00 to him and obtained possession of Amba Bhavan. They again needed an amount of Rs. 5,000. 00 and therefore they again approached the 1st defendant for further loan whereupon the 1st defendant agreed to advance the loan of Rs. 5,000. 00 on condition that they should execute a sale deed in his favour in respect of the ground floor of Amba Bhavan showing a consideration of Rupees 40,000/- and this amount would also carry interest at the rate of 18% per annum for 5 years. K. Ramankutty alias Lingam executed a receipt (Ex. A-2) for a total loan amount of Rs. 40,000. 00 on 5-5-1978 and on 8-5-1978/9-5-1978, the 1st defendant succeeded in obtain- ing the sale deed, Ex. B-3, of the ground floor of Amba Bhavan. it is further alleged that on 7-8-1978, the 1st defendany got an agreement to sell the 1st floor of Amba Bhavan (Ex. Bl) executed by the 1st plaintiff and her husband in favour of his son -- 3rd defendant -- to secure the interest and the loan amount of Rs. 40,000/ - showing wrongly the consideration as Rs. 35,000. 00 and payment of advance as Rs. 33,000/-, but without making any payment to them. The 1st plaintiff and her husband needed an amount of Rs. 7,000. 00 for their hotel business and wh
