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2023 Supreme(Online)(Mad) 70984
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Hemalatha, J
Poongodi – Appellant
Versus
P. Shanthi – Respondent
S.A.No.409 of 2023|C.M.P.No.12576 of 2023
For the Appellants/Petitioners: D. Ramesh Kumar
An unregistered sale deed for immovable property valued above Rs. 100 is inadmissible for proving a transfer of title, and occupancy originating as a tenancy cannot be converted into ownership through such an unregistered instrument, leaving the permissive character of possession undisturbed.
Headnote:(A) Transfer of Property Act, 1882 - Registered simple mortgage - Evidentiary value of unregistered sale deed - An unregistered instrument affecting immovable property valued above Rs. 100/- is inadmissible to prove transfer of title, though it may be received for collateral purposes - Possession claimed under an unregistered sale deed when the occupant was already in possession as a tenant, does not suffice to alter the character of possession or prove a sale. (Paras 12, 13).
(B) Appeals - Scope of Second Appeal - Interference is warranted only when finding is perverse - Where lower courts concurrently find that possession is permissive and not based on a sale, such findings based on sound principles of law are not subject to interference in second appeal. (Paras 13, 14).
Facts of the case:
Plaintiffs sought redemption of a mortgage over a suit property. Defendants contended that part of the property was purchased via an unregistered sale deed and that possession was held by virtue of such purchase, denying the mortgage was merely a simple mortgage. The trial court and the first appellate court rejected the defendant's contention, noting the instrument was unregistered and the occupant's status remained that of a tenant.
Findings of Court:
The Court held that the unregistered sale deed was inadmissible to prove transfer of title and that the defendant's possession was originally as a tenant, which continued as permissive occupation. The trial and appellate courts correctly assessed the evidentiary value of the documents.
Issues: Whether the courts below erred in ignoring the unregistered sale deed and whether the defendant's possession should be construed as ownership rather than permissive occupation.
Ratio Decidendi: An unregistered sale deed for property worth over Rs. 100/- cannot confer title. Furthermore, when possession is established as preceding the purported sale and originating from a tenancy, the claim of ownership based on such an unregistered document is untenable, and the mortgage is liable to be redeemed.
Result: Second Appeal dismissed.
| Table of Content |
|---|
| 1. summary of facts regarding the mortgage and lower court proceedings. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. admissibility of unregistered sale deeds to establish property transfer. (Para 11 , 12 , 13) |
| 3. non-interference with concurrent factual findings in second appeal. (Para 14 , 15) |
JUDGMENT
1. The first defendant who failed before both the Courts below had filed the present second appeal. The respondents/plaintiffs filed the suit in O.S.No.57 of 2007 on the file of the District Munsif cum Judicial Magistrate, Thirukazhukundram, for redemption of mortgage.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.
3. The case of the plaintiff in nutshell is as follows:
The plaintiff and her husband T.V.Panchaksharam had borrowed a sum of Rs.1,00,000/- from the defendant and executed a registered simple mortgage (Ex.A1) on 27.03.2003 through which the suit property, which was a portion of the super structure constructed by late T.V.Panchaksharam (husband of the first plaintiff), was mortgaged. The plaintiff's husband entered into a lease agreement with the second defendant in respect of the suit property belonging to them and he was also paying rents to the second defendant. Even though the mortgage was a simple mortgage, the first defendant was orally permitted to occupy the property mortgaged by the plaintiff's husband in lieu of interest for the amount borrowed under the mortgage. Since T.V.Panchaksharam was indisposed, he could not discharge the mortgage loan and ultimately he died on 04.07.2004, leaving behind the plaintiff and his two minor sons to succeed to his estate. The plaintiff, as one of the legal heirs of the deceased T.V.Panchaksharam, is entitled to redeem the mortgage. Though the plaintiff approached the first defendant on several occasions and offered to pay the entire principal sum of Rs.1,00,000/- towards discharge of the mortgage loan, the first defendant refused to receive the same and thereafter, the plaintiff issued a legal notice (Ex.A5) to the first defendant and the first defendant after receiving the said notice sent a reply notice dated 23.06.2007 (Ex.A6) which, according to the plaintiff, contained false allegations. The plaintiff also sent a rejoinder dated 05.07.2007 (Ex.A7) to the first defendant. Since the first defendant did not come forward to receive the mortgage loan amount, she was constrained to file the present suit for redemption of mortgage.
4. The suit was resisted by the first defendant on the following grounds:
i. It is true that the plaintiff's husband T.V.Panchaksharam borrowed a sum of Rs.1,00,000/- from the first defendant and executed a simple mortgage deed dated 27.03.2003 (Ex.A1) and the rate of interest was fixed at 24% per annum.
ii. The plaintiff's husband never paid any interest towards mortgage loan. The contention of the plaintiff in her plaint that though the document is only a simple mortgage, the first defendant was orally permitted to occupy the property mortgaged by her husband in lieu of interest for the amount borrowed under the mortgage deed is totally false.
iii. The plaintiff's husband was badly in need of money and therefore he sold the portion of the property to the first defendant for a valuable consideration and the first defendant is in possession of the same. Since a portion of the suit property belongs to the second defendant, the sale deed could not be registered.
iv. The allegations in the plaint that the plaintiff approached the defendant on several occasions and offered to pay the entire principal amount is totally false. The first defendant is not bound to deliver the possession of the suit property to the plaintiff, since the mortgage is a simple mortgage and the plaintiff has to pay interest amount towards the said mortgage amount. He therefore prayed for dismissal of the suit.
5. The se
