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2009 Supreme(Mad) 3963
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
Jeevatarhinam
Versus
Marimuthu & Others
S.A.No.97 of 2001
Decided on: 01-10-2009
For the Appellant:R. Subramanian, Advocate.
For the Respondents:R. Sunil Kumar, Advocate.
A mortgagee cannot claim title to the property by way of adverse possession and the burden of proof in redemption of mortgage cases remains with the mortgagor.
Headnote:
Redemption of Usufructory Mortgage - Burden of Proof - Adverse Possession - Section 83 of Transfer of Property Act - Section 58 of Indian Evidence Act
Fact of the Case:
The suit was filed by the respondents seeking a decree for redemption of a usufructory mortgage created in 1974. The trial court granted preliminary decree for redemption, which was confirmed by the first appellate court. The second appeal was filed by the defendant challenging the burden of proof and non-production of a partition deed.
Finding of the Court:
The court found that the burden of proof was not shifted to the appellant and that the appellant, as a mortgagee, cannot claim title to the property by way of adverse possession. The court also held that the non-production of the partition deed was irrelevant as the appellant had admitted the title of the respondents as mortgagors.
Issues: The issues revolved around the burden of proof on the appellant to show loss of title by the respondents and the relevance of non-production of a partition deed.
Ratio Decidendi: The court held that the burden of proof was not shifted to the appellant and that a mortgagee cannot claim title to the property by adverse possession. The court also emphasized that the appellant's admission of the respondents' title as mortgagors rendered the non-production of the partition deed irrelevant.
Final Decision: The Second Appeal was dismissed, upholding the lower courts' decisions in favor of the respondents.
1. The second appeal has been preferred against the Judgment and Decree dated 31.07.2000 passed in A.S.No.76 of 1999 on the file of the Principal District Judge, Pondicherry, confirming the Judgment and Decree, dated 25.09.1998 made in O.S.No.190 of 1996 on the file of the II Additional District Munsif, Pondicherry.
2. The defendant before the trial court is the appellant herein. The suit was filed by the respondents / plaintiffs before the trial court, seeking a decree for redemption of usufructory mortgage, dated 25.09.1974 and the suit was decreed as prayed for.
3. By Judgment and Decree, dated 25.09.1998, the trial court granted preliminary decree, which reads as follows :
"1. That the defendant do pay into the court on or before the day of .... or any later date up to which the time of payment may be extended by the court the said sum of Rs.4,000/- with interest at....% per annum on Rs.4,000/-from the date of plaint till date of payment.
2. That on such payment and on payment thereafter before such date as the court may fix of such amount as the court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest may be payable under Rule 11 of Order XXXIV of the First schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the defendant or to such person as he appoints and the plaintiff shall, if so required, reconvey or retransfer the said property free from the mortgage and to clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required deliver up to the defendant quite and peaceful possession of the suit property.
3. And it is hereby further ordered and decreed that in default of payment as aforesaid, the plaintiff may apply to the court or a final decree for the sale of the mortgaged property and on such application being made, the mortgaged property or a sufficient part there of shall be directed to be sold and for the purpose of such sale the plaintiff shall produce before the court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into the court and shall be duly applied (after deduction therefrom the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the court may adjudge due to the plaintiff in respect of such costs, charges and expenses as may be payable under Rule 10 together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 and that balance, if any shall be paid to the defendant or other persons entitled to receive the same.
5. And it is hereby ordered and decreed that if the amount realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid the plaintiff shall be at liberty (where such remedy is open to him under the term of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance: and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the court may give such directions as it thinks fit. "
4. Aggrieved by the Judgment and Decree of the trial court, the defendant in the suit preferred appeal. The first appellate court, by its Judgment and Decree, dated 31.07.2000 made in A.S.No.76 of 1999, confirmed the Judgment and Decree passed
