Back
Andhra Pradesh High Court
Judges : MANOHAR PERSHAD
Bogam Papamma - Appellant
Versus
Kamatnam Lakshmamma - Respondent
Decided On : 08-20-63
TRANSFER OF PROPERTY ACT, 1882 - SECTION 8 - TRANSFER OF MORTGAGE DECREE - SCOPE - MORTGAGEE'S RIGHT TO FILE SUIT ON BASIS OF MORTGAGE BOND - EVIDENCE ACT, 1872 - SECTION 68 - ADMISSIBILITY OF MORTGAGE BOND IN EVIDENCE - PRIOR ADMISSION IN EARLIER SUIT.
Fact of the Case:
Plaintiff, as transferee of a mortgage decree, filed a suit for recovery of the mortgage amount on the basis of the mortgage bond. The defendants contended that the transfer deed transferred only the mortgage decree and not the debt, and that the suit was not maintainable. They also argued that the mortgage bond was not admissible in evidence as none of the attestors had been examined as required under Section 68 of the Evidence Act.
Finding of the Court:
The court held that the transfer deed transferred not only the mortgage decree but all the rights arising under the mortgage, including the right to recover the decree amount and interest from the mortgaged property. The court also held that the suit was maintainable as the relationship of mortgagor and mortgagee subsisted until a final decree was passed, and that the mortgage bond was admissible in evidence as it had been admitted in an earlier suit and the plea based on Section 68 of the Evidence Act was not taken.
Issues: 1. Whether the transfer deed transferred only the mortgage decree or also the debt secured by the mortgage? 2. Whether the suit was maintainable on the basis of the mortgage bond when a mortgage decree had already been obtained? 3. Whether the mortgage bond was admissible in evidence when none of the attestors had been examined?
Ratio Decidendi: 1. The court interpreted Section 8 of the Transfer of Property Act to hold that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. 2. The court held that the relationship of mortgagor and mortgagee subsists until a final decree is passed, and so long as that relationship subsists, it is open to the mortgagee to file a suit on the basis of the mortgage and obtain a decree. 3. The court held that the mortgage bond was admissible in evidence as it had been admitted in an earlier suit and the plea based on Section 68 of the Evidence Act was not taken.
Final Decision: The court dismissed the appeal with costs throughout.
( 1 ) THIS second appeal on behalf of defendants 1 and 2 arises out of O. S. No. 108 of 1956, on the file of the District Munsif Court, Kurnool, which was instituted by the 1st defendant herein for the recovery of a sum of Rs. 968-10-3 representing the principal and interest due under a mortgage deed dated 2-4-1941.
( 2 ) THE case of the 1st respondent was that one Bogam Alampur Subbamma borrowed Rs. 500. 00 from the 3rd defendant Bogam Gudur Giremma and mortgaged her properties by a registered mortgage deed dated 2-4-1941. The mortgage was redeemable within one year. The 3rd defendant on the basis of the mortgage filed O. S. No. 215 of 1349 for the recovery of the mortgage debt and obtained a preliminary decree. Subsequently, she transferred the mortgage decree in favour of the plaintiff under Ex. A-5 dated 3-11-1951. After the said transfer the plaintiff filed I. A. No. 661 of 1953 for continuing the proceedings and also I. A. No. 662 of 1953 for passing of a final decree. Both these I. As. were dismissed. According to the plaintiff as no final decree was passed thereafter and the mortgaged properties were not brought to sale and the preliminary decree having become un-executable, he (plaintiff) was entitled to file the suit on the foot of the mortgage". The appellants in their written statement pleaded ignorance to the transfer made to the plaintiff by the 3rd defendant. They inter alia denied that they had acknowledged in the previous written statement their liability to discharge the mortgage debt. Legal objections were also taken that the suit was barred by time, that the preliminary decree; In O. S. No. 215 of 1949 superseded the suit mortgage bond and hence no second suit can be filed on that bond, and that the dismissal of 1. As. 661 of 1953 and 662 of 1953 operated as res judicata against the plaintiff. An alternative plea was also taken that if the suit mortgage was true, it has been discharged and they were not liable to pay any debt. The 3rd defendant while admitting the transfer in favour of the plaintiff stated that he was not a necessary party to the suit.
( 3 ) THE learned District Munsif found that the mortgage-bond dated 2-4-1941 was true, valid and supported by consideration. It is also found that the plaintiff was a transferee of the suit mortgage and the preliminary decree and was entitled to file the suit on the basis of the mortgage. On the issue as to whether the suit was barred in view of the order in I. As. 661 and 662 of 1953, and whether final decree proceedings in O. S. No. 215 of 1949 were a part of the suit. It was not found a bar. In the result, the trial Court passed a preliminary decree in favour of the plaintiff for Rs. 841-10-3 with interest. Against the decree and judgment of the learned District Munsif, defendants I and 2 went in appeal to the Court of the additional Subordinate Judge, Kurnool. The appellate Court agreed with the findings of the trial Court and dismissed the appeal. Hence this second appeal on behalf of defendants 1 and 2.
( 4 ) IN this appeal, Sri Rarnamohan Rao, the learned counsel for the appellant has advanced two arguments. His first contention is that the transfer-deed (Ex. A-5) transferred only the mortgage-decree and not the debt, and, therefore, the present suit for recovery of mortgage amount on the basis of the mortgage-bond was not maintainable. In this connection, the learned counsel places reliance on a decision of the Allahabad High Court in Ganpat Rai v. Sarupi, ILR 1 All 446. The second contention advanced is even assuming that the present suit is maintainable, the mortgage-bond was not admissible in evidence), as none of the attestors has been examined, as required under Section 68 of the Indian Evidence Act.
( 5 ) IN order to appreciate the first contention of the learned counsel, 1 have to reler to the deed of transfer and certain provisions of the Transfer of Property Act
( 6 ) THE deed of transfer is in Telugu. Its English version
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
