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HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU, J.
Dharani Ammal & Another
Versus
Arayee
Second Appeal Nos. 958 & 959 of 2014
Decided On : 23-01-2015
Transfer of Property Act, 1882 - Section 58 - Limitation Act, 1963 - Indian Registration Act - Sections 17 and 49 - Indian Evidence Act - Section 91 - Possession of property - Interest payable for loan amount - Unregistered deed of sale agreement – Admittedly is owner of suit property which is one and same in both suits - According to had mortgaged suit property under a registered mortgage deed to - Later on was not able to redeem mortgage - Therefore she decided to sell suit property - They reached an agreement for sale by which sale consideration was fixed - At time of agreement itself entire amount of was paid out of which paid a sum of and redeemed mortgage - Evidencing payment an endorsement was made on mortgage deed itself - Evidencing said sale agreement an unregistered deed of sale agreement was also executed in favor itself - As per terms of agreement for sale there was no time fixed for performance - It is further case that she was all along ready and willing to perform her part of contract to get sale deed executed in her favor – But evasive and she did not come forward to perform her part of contract and to sell property in favor though had received entire sale consideration already - There were also exchange of notices - Finally seeking a decree for specific performance of contract based on agreement of sale filed suit – Held, Hobble Supreme Court has also affirmed legal position that the so called mortgagee under invalid mortgage can acquire rights of a mortgage on expiry of twelve years of adverse possession and thereafter notwithstanding anything stated in Section 59 of Transfer of Property Act there shall come into being a full-fledged mortgage giving all mortgagee rights - In view of above settled possession of law one thing is crystal clear that from date of entering into invalid mortgage if so called mortgagor wants to recover 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 expiry of twelve years period if so called mortgagee becomes an actual mortgagee thereby acquiring all rights of mortgagee by prescribing same by adverse possession asserting mortgagee rights thereafter mortgagor can only file a suit for redemption of mortgage and for recovery of possession and not a simple suit for recovery of possession - In instant case invalid mortgage was entered into by which possession was given - Admittedly did not file a suit for recovery of possession within this twelve years period of limitation prescribed under Article 65 of Limitation Act - Continued to be in possession from year but he did not continue to be in possession asserting mortgagee rights so as to become a full-fledged mortgagee - According to written statement there was no such oral mortgage and thus he never had animus that he was in possession of property to assert his mortgagee rights – Thus his possession was not adverse for purpose of asserting mortgagee rights – Therefore there did not come into being a fully fledged mortgage and thus did not acquire mortgagee rights – Therefore remedy is only to file a simple suit for recovery of possession which she has rightly done in instant case - Has not even pleaded adverse possession either for prescribing mortgagee rights or to prescribe title – Therefore though he was in possession continuously from year he has not perfected mortgagee rights neither has he perfected title by adverse possession - He has only pleaded that his has been in possession under sale agreement which has been found to be false - Appeals are dismissed
S. NAGAMUTHU, J.
1. These second appeals have arisen out of a common judgment and the decrees passed by the learned Subordinate Judge, Chidambaram, in A.S. Nos. 12 and 13 of 2013 dismissing the appeals and confirming the decrees and common judgment of the learned District Munsif-cum-Judicial Magistrate, Portonovo, in O.S. Nos. 61 of 2009 and 10 of 2010. The appellant in S.A. No. 958 of 2014 is the defendant in O.S. No. 61 of 2009 and the respondent in the said second appeal is the defendant in the suit. The appellant in S.A. No. 958 of 2014 is the plaintiff in O.S. No. 10 of 2010 and the respondent is the defendant in the said suit. The plaintiff in O.S. No. 61 of 2009 and the defendant in O.S. No. 10 of 2010 are one and the same person namely, Mrs. Arayee. For the sake of convenience in this judgment, the parties shall be referred to in their respective name.
2. Admittedly, Mrs. Arayee [the respondent in both the appeals] is the owner of the suit property, which is one and the same in both the suits. According to Mrs. Dharani Ammal [the appellant in S.A. No. 958 of 2014], Mrs. Arayee had mortgaged the suit property under a registered mortgage deed dated 21.05.1992 to one Mrs. Nagammal. Later on, Mrs. Arayee was not able to redeem the mortgage. Therefore, she decided to sell the suit property to Mrs. Dharani Ammal. They reached an agreement for sale on 03.07.1993, by which, the sale consideration was fixed at Rs. 7,140/- [Rupees Seven Thousand One Hundred and Forty only]. At the time of agreement itself, the entire amount of Rs. 7,140/- was paid, out of which Mrs. Arayee paid a sum of Rs. 4,000/- [Rupees Four Thousand only] to Mrs. Nagammal and redeemed the mortgage. Evidencing the payment of Rs. 4,000/- an endorsement was made on the mortgage deed itself. Evidencing the said sale agreement, an unregistered deed of sale agreement was also executed by Mrs. Arayee in favour of Mrs. Dharani Ammal on 03.07.1993 itself. As per the terms of the agreement for sale, there was no time fixed for performance. It is the further case of Mrs. Dharani Ammal that she was all along ready and willing to perform her part of contract to get sale deed executed in her favour. But, Mrs. Arayee was evasive and she did not come forward to perform her part of contract and to sell the property in favour of Mrs. Dharani Ammal though Mrs. Arayee had received the entire sale consideration already. There were also exchange of notices. Finally, seeking a decree for specific performance of contract based on the agreement of sale dated 03.07.1993, Mrs. Dharani Ammal filed the suit in O.S. 10 of 2010.
3. Mrs. Arayee in her written statement took the plea that it is true that she is the owner of the suit property. But, she had never entered into any such sale agreement on 03.07.1993, as it is claimed by Mrs. Dharani Ammal. According to her, her husband had approached the husband of Mrs. Dharani Ammal by name Mr. Muniyan for a loan of Rs. 3,000/-. Mr. Muniyan [the appellant in S.A. No. 959 of 2014 and the defendant in O.S. No. 61 of 2009] was the then Thalayari of the Village. Mr. Muniyandi agreed and paid a sum of Rs. 3,000/- as loan. In turn, he was permitted to enjoy the suit property towards the interest payable for the loan amount. Mr. Muniyan agreed and assured Mrs. Arayee and her husband that he would handover the possession of the property to Mrs. Arayee on repayment of the loan amount. At that time, as per the mutual agreement, the original title deed in the name of Mrs. Arayee was also handed over to Mr. Muniyan along with the discharged mortgage deed mentioned herein above. According to her further case, during that transaction, whether she was forced to sign in blank stamp papers or not, could not be recollected by her. However, she took a specific stand that she never executed any such sale agreement as propounded by Mrs. Dharani Ammal. Subsequently, on mobilizing the funds, when Mrs. Arayee approached Mr. Muniyan to settle the loan and to take
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