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2025 Supreme(Online)(KAR) 4413
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K. NATARAJAN, J
Shivakumar S/o Late Sri. Surayanarayana D N – Appellant
Versus
C. G. Manjunatha – Respondent
REGULAR FIRST APPEAL NO.846 OF 2020 CONNECTED WITH WRIT PETITON NO.15956 OF 2023
Advocate Appeared:
For the Appellant :SRI. D. PRABHAKAR, ADVOCATE
For the Respondent:SRI. PRADEEP J S., ADVOCATE FOR R1(A TO C)
:
The right to redeem a mortgage is preserved despite the sale of the property during litigation, and mortgagee rights do not confer ownership.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 96, 151, Order 21 Rule 24 - Redemption of mortgage - The plaintiff sought redemption of a usufructuary mortgage executed in 1990, claiming ownership through a Will. The defendants contended the plaintiff's right was extinguished due to property sale during litigation. The trial court decreed in favor of the plaintiff, affirming ownership and right to redeem. (Paras 11, 12, 24)
(B) Mortgage Law - Right of redemption - The court held that the right to redeem a mortgage is not extinguished by the sale of the property during litigation, as the right remains with the mortgagor unless legally extinguished. (Paras 17, 22)
(C) Tenancy Rights - The court ruled that the defendants, as mortgagees, could not claim tenancy rights post-redemption, as the mortgage relationship superseded any prior tenancy. (Paras 23, 24)
Facts of the case:
The plaintiff filed for redemption of a mortgage executed by the deceased mortgager in favor of the deceased mortgagee. The defendants claimed ownership through a Will and argued the plaintiff's right was extinguished by a sale during litigation.
Findings of Court:
The trial court found the plaintiff was the rightful owner and entitled to redeem the mortgage, dismissing the defendants' claims.
Issues: The main issues included the plaintiff's ownership through the Will, the effect of the property sale on the right to redeem, and the defendants' claim to tenancy.
Ratio Decidendi: The court emphasized that the right to redeem a mortgage is preserved despite property sales during litigation, and the mortgagee's rights do not confer ownership.
Result: Appeal dismissed.
CAV JUDGMENT
This RFA No.846/2020 is filed by the appellants/defendants under Section 96 of CPC for setting aside the judgment and decree passed by XIV Addl. City Civil and Sessions Judge, Bengaluru, in O.S.No.8885/2001 dated 14.2.2020 for having decreed the suit of the plaintiff.
2. W.P.No.15956/2023 is filed as against the order passed by the same court in FDP No.109/2020 on the application filed under Order 21 Rule 24 of CPC and Interlocutory Application filed under section 151 of CPC by the appellant.
3. Heard the arguments of learned counsel for the appellants in the appeal and the counsel for petitioners in writ petition and learned counsel for the respondents.
4. The appeal is preferred as against the preliminary decree and the writ petition is filed as against the proceedings in FDP.
5. The appellants are defendants and the respondent No.1 was the plaintiff before the trial court and the ranks of the parties are retained for the sake of convenience.
6. The case of the plaintiff before the trial court is that the plaintiffs have filed suit for redemption of mortgage deed dated 5.9.1990 executed by the deceased mortgager Venkatalakshmamma in favour of the deceased mortgagee D.S.Meena. It is contended that the suit schedule property bearing old No.317 and New No.2 situated at 7th main road Vyalikaval, consisting of main house and an out house belonging to one B.R.Gopalakrishna who died in the year 1982 by leaving behind his wife Venkatalakshmamma and unmarried daughter i.e., the plaintiffs, as his legal heirs. The said B.R.Gopalakrishna had son by name Shivarmu, he was pre-deceased to his father. Hence the Venkatalakshmamma and plaintiffs have settled the entire property. The Venkatalakshmamma being eldest female member used to administer the property, she has mortgaged a portion of property in favour of DS Meena who is wife of defendant No.1 on 5.9.1990. It is a usufructuary mortgage with possession for a sum of Rs.30,000/-. The mortgage period is for 7 years. The mortgagee was put in possession and enjoyed the property as a security for the advance amount, until the mortgage amount is paid by the mortgagor to the mortgagee. The property shall remain in possession of the mortgagee. The mortgagee died on 24.10.1994 by leaving behind her husband and children i.e., defendant Nos.1 to 3. The defendants have continued to be in possession under usufructuary mortgage. The defendant has filed a suit against the plaintiff in O.S.No.2840/1999. The original mortgagor Venkatalakshmamma died on 30.7.1998 by leaving behind the only legal heir, the plaintiff to succeed the estate. After the expiry of 7 years of mortgage period, the plaintiff issued the legal notice to defendant No.1 and demanded to revise the mortgage amount and hand over the possession and reconvey the mortgage property. The defendant No.1 replied that he is ready to receive the mortgage amount and redeem the mortgage, but refused to handover the vacant possession. Hence, the suit is filed by the plaintiff against the defendant for redemption of mortgage along with the mesne profit and other relief.
7. It is further alleged that during the pendecy of the suit, the original plaintiff died and during her lifetime, she also executed a Will dated 6.8.1998 in favour of one C.G.Manjunath and his mother Venkatalakshmamma, since Venkatalakshmamma also reported to be dead, her son C.G.Manjunath got impleaded as a legal heir based upon the Will.
8. In pursuance of the summons, the defendants appeared and filed written statement contending that the suit is not maintainable either in law or in facts. It is also denied that the Gopalkrishna died by leaving behind Venkatalakshmamma and the plaintiff. The Gopalkrishna bequeathed all property in favour of Sathya Sai Trust, White field, Bangalore, by virtue of the said 'Will' that the entire property shall vest with the trust, after the death of Venkatalakshmamma. The plaintiff has no right to seek any redemption of mortgage. It is admitted
