IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 111 of 1998()
1. B.MADHAVI AMMA
... Petitioner
Vs
1. K.KARUNAKARAN NAIR
... Respondent
For Petitioner :SRI.K.P.SREEKUMAR
For Respondent :SRI.P.KESAVAN NAIR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/02/2011
O R D E R
S.S.SATHEESACHANDRAN, J.
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S.A.No.111 of 1998
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Dated this the 3rd day of February, 2011
JUDGMENT
Plaintiffs in a suit for redemption,
O.S.No.122/84 on the file of the Additional Munsiff’s Court,
Nedumangad are the appellants. Both the courts below
have negatived their claim for redemption of the suit
property, finding merit in the contentions taken by the
respondent/defendant denying the mortgage, and of
claiming anterior possessory right over the suit property,
more than a decade before the alleged mortgage, by way
of trespass, with a further plea of prescribing title over the
same by adverse possession. Before the lower appellate
court, the plaintiff had moved an application for amending
the plaint to seek an alternative relief for recovery of
possession on the strength of their title, but that was also
turned down as belated while dismissing their appeal, and
confirming the dismissal of the suit by the trial court.
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2. Short facts necessary for consideration of
the substantial questions of law raised for disposal of the
appeal can be summed up thus:
Suit property having an extent of 8 cents was
obtained by the 1st plaintiff under Ext.A6 partition deed.
Second plaintiff is her daughter and 3rd plaintiff, her son in
law. Pursuant to Ext.A6 partition deed, the 1st plaintiff
executed Ext.A3 mortgage deed over the suit property, for
a sum of ` 5,000/-, in favour of the defendant and put him
in possession of the property. A term of 6 years was fixed
under the deed after which right to redeem was to
commence. Subsequently, she executed A2 settlement
deed in favour of her daughter, 2nd plaintiff, authorising
her to redeem the property, and the 2nd plaintiff in turn
executed Ext.A3 sale deed authorising her husband 3rd
plaintiff, to redeem the property. When the period fixed
was over, alleging that the defendant has committed
damage to the tune of ` 2,000/- and the improvements
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effected by him for digging a well, that alone, was ` 100/-,
the plaintiffs, all of them together, laid the suit for
redemption, seeking adjustment of the sum due as
damages in the mortgage price payable to the defendant.
3. The defendant resisted the suit claim
disputing the mortgage (Ext.A1) and contended that the
property belongs to him. He claimed of obtaining
possession over the property by trespass in 1965, and of
conducting a tea shop in the building put up by him.
Ext.A3 mortgage is a fraudulent document created by the
plaintiffs to claim right over the property, was his further
case. He also contended that the 1st plaintiff has not
obtained right over the property under Ext.A6 partition
deed. Impeaching Ext.A3 mortgage deed as not binding
on him and disowning his liability to surrender the
property as a mortgagee, he further contended that
Ext.A1 is the product of fraud and impersonation. In the
alternative, it was contended that if at all the plaintiffs
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have any right over the suit property, their rights have
been lost by adverse possession and limitation by his
continuous hostile possession over the property from 1965
onwards. Claim for a sum of ` 20,000/- towards value of
improvements was also canvassed, if for any reason, the
property is found to be redeemable.
4. The trial court, on the pleadings of the
parties, raised the following issues:
(i) Whether the plaintiffs are entitled to
redeem the mortgage, and if so, the claim
of damages raised, or any part thereof, is
sustainable?
(ii) Whether Ext.A3 mortgage deed is binding
on the defendant?
(iii) Is the suit barred by limitation and adverse
possession?
(iv) Has the defendant any special right over
the property and
(v) What, if any, is the value of
improvements?
5. On the materials tendered by both sides,
which consisted of Pws.1 to 5, Exts.A1 to A11 for the
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plaintiffs, DWS.1 and Exts.B1 to B15 for the defendant and
Ext.C1 report prepared by the advocate commissioner,
after conducting local inspection over the suit property,
the trial court came to the conclusion that the defendant
had come into possession long before Ext.A3 mortgage
and that there was no clinching evidence to conclude that
he is a mortgagee under Ext.A1 deed. His possession was
not under Ext.A1 deed, but by trespass over the property
much earlier, as contended, was found more probable to
the trial court, which concluded that the plaintiffs are not
entitled to redeem the property as if the defendant was a
mortgagee over the property. Since there was no prayer
for recovery of possession on the basis of title, the trial
court held that the suit has to be dismissed. The trial court
also held that the materials tendered in the case
supported his claim of special right over the property, as it
indicated that he had constructed a building, dug a well,
and effected various improvements in the property.
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Though the question of title of the plaintiffs over the
property was not cast as an issue in the suit, the trial court
examined that also to consider the plea of adverse
possession and limitation raised by the defendant and,
then, upholding such challenges mooted by the defendant
to resist the redemption, the suit was dismissed.
6. The lower appellate court, in the appeal
preferred by the plaintiffs against the dismissal of their
suit, turned down their request for amendment of the
plaint to seek recovery of possession on the strength of
their title, rejecting the application moved in that regard
as belated. Re-appreciating the materials tendered in the
case, that court concurring with the view of the trial court,
confirmed the dismissal of the suit.
7. Substantial questions of law raised for
consideration in the appeal are thus:
(i) Has the defendant pleaded and proved his
case of adverse possession and limitation?
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(ii) Are not the plaintiffs entitled to get recovery
of property on the strength of their title, even
if the mortgage deed in favour of the
defendant is not proved.
(iii) Can the production of the licence to conduct
tea shop in the schedule building and
possession over the building from 1973 to
1984 to prove adverse possession and
limitation.
(iv) Are not the plaintiffs in the case entitled to
rely on the legal presumption that possession
follows title?
(v) Is the appellate court justified in dismissing
the petition for amending the plaint on the
basis of the documents produced in the case?
(vi) Is the court justified in rejecting the petition
for production of fresh documents if the said
documents are vital and a just decision
demands their acceptance in evidence?
8. I heard the counsel on both sides. Both the
courts below have mis-appreciated the facts and
circumstances involved, and also the materials tendered
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in the case, and the claim of the appellants/plaintiffs for
redemption of the property was negatived placing
unmerited value on the defence projected by the
respondent/ defendant to deny the execution of Ext.A3
mortgage deed, is the submission of the learned counsel
for the appellants. Even assuming there is some force in
the plea of the defendant to deny Ext.A3 mortgage, where
the plaintiffs have produced Ext.A6 partition deed showing
the pre-existing title of the 1st plaintiff over the suit
property, the lower appellate court should have allowed
the application moved for amendment of the plaint, to
seek recovery of possession of the property on the
strength of their title, according to the counsel. Dismissal
of that application, by the court below holding it as highly
belated, it is submitted, is totally unjustified especially
where the trial court, without raising an issue over title,
rendered an adverse decision against the plaintiffs
upholding the claim of adverse possession canvassed by
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the defendant with a further finding that the suit claim for
redemption is barred by limitation. Plea raised by the
defendant denying the execution of Ext.A3 mortgage, and,
at the same time, setting forth a claim of adverse
possession and limitation, disputing the title of the
plaintiffs over the suit property, should have been found
to be unworthy of any merit, and the suit claim for
redemption proved by the materials deserved only to be
allowed, is the submission of the counsel.
9. Per contra, contending that no interference
with the concurrent decision rendered by the two courts
below that the plaintiffs are not entitled to redeem the
property and that the defendant has established his right
over the property, as having prescribed title by adverse
possession, the learned counsel for the respondent
submitted that on the materials placed, the plaintiffs have
miserably failed to show that the defendant was put in
possession of the property under Ext.A1 mortgage deed.
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His possession over the property long prior to Ext.A1
mortgage deed asserting his title over the same, is
demonstrated by the materials tendered in the case, is the
submission of the counsel. When Ext.A1 mortgage was
denied by the defendant contending that his possession is
not as a mortgagee, and that such deed is the product of
fraud and impersonation, it is submitted, burden was upon
the plaintiff to prove that the defendant is in possession
of that property under Ext.A1 mortgage deed. The
evidence of Pws.2 and 3, the document writer and an
attester respectively to Ext.A3, examined by the plaintiff,
according to the counsel, as rightly found by both the
courts, not only does not assist the plaintiff in proving the
possession of the property by the defendant as a
mortgagee under the deed, but, on the contrary, support
the case of the defendant that after committing trespass,
at least one decade before the mortgage, he had come
into possession of the property and continued to be in
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possession and enjoyment effecting valuable
improvements, including the construction of a building,
asserting his hostile animus to the real owner. Both the
courts below have rightly and correctly held that the
defendant has prescribed title over the property by
adverse possession and limitation, and the claim of the
plaintiffs even assuming that they have any title,
according to the counsel, is barred by limitation. No
interference with the concurrent findings made by the
courts below, on the proved the facts and circumstances
involved and the materials placed in the case, is called for,
is the submission of the counsel. The dismissal of the
application moved for amendment of the plaint by the
lower appellate court also does not call for any
interference in the given facts of the case and, more so,
where the suit commenced more than three and a half
decades ago is the further submission of the counsel to
contend that this appeal deserves only to be dismissed.
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10. The defendant in the suit, who is shown to
be a mortgagee in possession of the suit property under a
registered mortgage deed, Ext.A1, has denied his status
as a mortgagee, contending that his possession over the
suit property commenced much earlier as a trespasser,
and he had put up constructions in the property and
continued in possession denying the title of the owner,
whoever he may be, and by such continuance for the
statutory period he has prescribed title over the property
by adverse possession. Suit being one for redemption of
the mortgage covered by a registered deed Ext.A1, what
is the burden cast upon the plaintiffs who claim to be the
mortgagors to sustain their right to redeem it by way of a
decree from the court when resistance thereof is put up by
the defendant disputing the mortgage and setting up title
to himself contending that he had been in possession long
prior to the mortgage and the creation of the mortgage is
only a fraud by the plaintiffs to defeat his valuable
S.A.No.111 of 1998
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interests in the property, is the pivotal question emerging
for consideration in the case. Have the plaintiffs to prove
their title over the suit property and then seek recovery of
possession of the property, where the defendant disputed
his status as a mortgagee, on the strength of their title, is
yet another question that may demand an answer in the
facts involved. As adverted to earlier, the plaintiffs had
sought for an amendment of the plaint to claim recovery
of possession on the basis of their title at least before the
lower appellate court, but that request was denied holding
that it was belated. Though the suit was one for
redemption and no issue was raised on the basis of the
contention of the defendant as to having prescribed title
by adverse possession the trial court had entered a
finding that the plaintiffs had lost their title upholding the
claim of adverse possession of the defendant. Such being
the situation, at the outset, it has to be stated whether or
not the request by the plaintiffs for amendment sought for
S.A.No.111 of 1998
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is warranted in the case, the lower appellate court was not
at all justified in turning down the amendment application
moved in appeal by the appellants/ plaintiffs for the
reason that it was ‘belated’.
11. Perusing the judgments rendered by the
trial court as also the lower appellate court, it is seen that
the tenability of the objection canvassed by the defendant
disputing a registered mortgage deed over the suit
property has not been appreciated and considered with
reference to the law applicable to mortgages and the
rights and liabilities of the mortgagor and mortgagee as
covered by the Transfer of Property Act. Leaving aside
the question whether the denial of the mortgage by the
mortgagee would warrant amendment and conversion of a
suit for redemption into one for recovery of possession on
the strength of title, how far and to what extent and under
what circumstances a person in possession of a mortgage
holding, who is shown to be the mortgagee under a
S.A.No.111 of 1998
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registered instrument, can set up a title adverse to the
mortgagor and if such a defence is raised in a suit for
redemption, how it has to be analysed has to be
examined.
12. Ext.A1 is the registered mortgage over the
suit property which, prima facie, discloses that for a
mortgage price of ` 5,000/- obtained as a loan from the
defendant, as a security thereof fixing a redemption
period of 6 years, the defendant was put in possession of
the property. Ext.A1 deed is imputed as a fraudulent
document created by the plaintiffs to defeat his interests
over the property is the case of the defendant, contending
that he is in possession of the property not as a
mortgagee, but as a trespasser which had commenced
long prior to Ext.A3 mortgage. Ext.A3 mortgage is
executed by the 1st plaintiff wherein her antecedent title
over the property obtained under Ext.A6 partition deed is
spelt out. In view of the denial of the mortgage by the
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defendant, Ext.A6 partition deed had also been produced
by the plaintiffs. In addition, plaintiffs have also produced
Ext.A4 series evidencing payment of revenue charges
over the property from 1965. Pursuant to Ext.A1,
mortgage, the transfer effected in favour of the 2nd
plaintiff and later from that plaintiff to the 3rd plaintiff, as
alleged by the plaintiffs, is proved by producing Ext.A2
settlement deed and Ext.A3 sale deed. Ext.A7 is another
mortgage deed obtained from the 3rd plaintiff and another
by the very same defendant in respect of an adjoining
property. The plaintiffs also tendered materials showing
that the defendant had moved an application before the
Tahsildar (Ext.A8) to effect mutation in his name over the
property and a notice thereof was issued to the patta
holders, the plaintiffs seeking their objections. Ext.A9 is
the copy of the notice received by the plaintiffs from the
Taluk Office on Ext.A8 application moved by the
defendant as aforementioned. Over and above these
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documents, to substantiate that they have title over the
property and the defendant is only a mortgagee, plaintiffs
produced Ext.A10 and Ext.A11 building tax receipt and
demand notice from the Local Authority in respect of the
building, which is made mentioned of in Ext.A3 mortgage
deed. As against the documentary materials tendered by
the plaintiffs, the defendant produced D1 to D15 to
sustain his case that he has been in possession over the
suit property from 1965 onwards and it was by way of
trespass denying the title of the real owner. Those
materials tendered by the defendant have been relied by
both the courts to uphold his claim of being in possession
as a trespasser of the suit property and not as a
mortgagee under Ext.A3 mortgage deed.
13. What is the value of Ext.A1 registered
mortgage deed and how far a denial of such mortgage
deed by the defendant where he is shown to be a
mortgagee under such instrument is the primary question
S.A.No.111 of 1998
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that has to be considered to examine the suit claim for
redemption. The very purpose of the Registration Act is to
guard against the fabrication of false documents of title
from time to time. The real purpose of registration is a
check to provide good evidence of the genuineness of
written instruments. It is intended to provide a guarantee
of the genuineness of the instrument and further to give
notice to persons as to the dealings with respect to a
property. In a case where execution of the document is a
matter in issue between the parties to that instrument,
registration, by itself, is not sufficient to prove its
genuineness, nor dispense with necessity of independent
proof. As if the execution of the instrument Ext.A3
mortgage deed was under challenge in the case, it is seen,
both the courts have proceeded to appreciate the
evidence let in by the plaintiffs who had taken steps to
examine Pws.2 and 3, the scribe and attester to that
instrument to show the genuineness of the transaction
S.A.No.111 of 1998
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covered by that instrument. PW.3 is none other than the
elder brother of the defendant. Though he admitted his
signature as attester to Ext.A3 mortgage deed, he
supported the contentions of the defendant as to having
possession much prior to the document and, in fact, not
under the instrument. PW.2, the scribe, who prepared the
original of Ext.A3 mortgage deed, in his evidence stated
that the defendant was not present when the mortgage
deed was prepared, and, the details were furnished at his
office. He had specifically asserted that the mortgage
deed was signed by the executant, the 1st defendant and
also the attesters at his office. However, both the courts
below found considerable merit in the case canvassed by
the defendant that the mortgage deed was executed
without his knowledge, placing emphasis on the statement
of PW.2 scribe that he was not present when the
document was prepared and also that of the brother of the
defendant, one of the attesters to the mortgage deed that
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the defendant continued in possession much earlier to the
deed as a trespasser. To say the least, the approach
made by the courts below in examining the registered
mortgage deed, the execution of which is proved by the
evidence of Pws.1 to 3, on the circumstances referred to
above as deposed to by Pws.2 and 3, to consider the
question involved arising from the denial of the defendant
disputing his possession over the property as a
mortgagee, but as a trespasser, is egregiously erroneous
and in fact against the settled principles of law. As
indicated earlier, the validity of the mortgage deed over
the suit property duly registered under the Registration
Act, and the legal presumptions attached thereto following
from the registration certificate endorsed on the
instrument, with the evidence proving its execution by the
mortgagor, was not even taken note of by the courts
below, both of them, while the challenge against that
deed by the defendant was upheld on the innocuous
S.A.No.111 of 1998
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circumstances presented in the evidence of Pws.2 and 3.
The fact that the document was duly executed and
endorsed with the certificate of registration, is prima facie
evidence that the requirements of the Registration Act
have been complied with, and, after such endorsement,
the burden of proving any act or omission, which would
invalidate the registration rests on the person who
challenged the registered deed. The distinction between a
fraudulent registration and a challenge against the
contents of a registered document is quite different and
further the legal approach in impeaching a registered
instrument on such distinct ground, differ from one
another. So far as the challenge against the fraudulent
registration, it is a case where the challenge is that the
instrument itself is void. But in the case of a challenge as
to contents of a registered instrument, whatever be the
reason thereof, the instrument, at the most, is voidable at
the instance of the party, who sets up such a challenge.
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The party, who seeks to impeach the registration of a
document, upon him is the burden of proving the facts
which he allege to invalidate that instrument. So far as
the execution of a mortgage under a registered
instrument is concerned, the presence of the mortgagee
or his acceptance of the mortgage deed is not warranted.
So this was a case where registration of Ext.A3 mortgage
deed as required by law and execution of such instrument
by the mortgagor, the 1st plaintiff, has been proved,
shifting the burden on the defendant to substantiate his
challenge that such registered instrument was, in fact, a
fraud practised to defeat his valuable rights over the suit
property, which according to him, came to his possession
by trespass at least 11 years before Ext.A3 mortgage
deed. Though he is alleged to have trespassed over the
suit property a decade before the execution of Ext.A3
mortgage deed, he has not pleaded as to who is the owner
of such property, against whom by continuous and
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uninterrupted possession, a plea of adverse possession by
title had been set up in the suit. Assuming that he was a
trespasser as pleaded, still he could acknowledge the title
of the real owner and obtain a mortgage with the liability
to be redeemed on payment of the mortgage price. So
much so, the challenge raised that he was a trespasser to
the property would not improve his case especially where
the statutory period to prescribe title by having
continuous uninterrupted possession from the date of
trespass had not ben completed as and when Ext.A3
mortgage deed was executed, if it is shown to be genuine,
and his possession after such mortgage was only as a
mortgagee of the land. Plaintiffs have proved the
execution of Ext.A3 mortgage deed and further their
antecedent title over the suit property which was
mortgaged under that instrument. As against the claim of
the plaintiffs proved, with respect to execution and their
antecedent title over the mortgage holding, what has
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been tendered by the defendant are only materials to
sustain that his continuous possession as a trespasser
over the property from 1965 onwards. He was a
trespasser over the property before the registered
mortgage was executed in his favour would not in any way
assist him unless he is able to prove and establish that the
execution of Ext.A3 mortgage deed was a fraud
committed by the 1st plaintiff, the mortgagor, to defeat his
valid rights over the property. His possession was not
under the mortgage despite the execution of the
registered instrument necessarily has to be established
showing that the mortgage deed is fraudulent and not
binding on him. On that aspect, it is seen, other than the
denial of the registered mortgage deed disputing
knowledge over the same, the defendant has not
produced any worth mentioning evidence in the case.
Even the materials tendered by him would disclose that he
had been conducting a hotel by name ‘Janatha Hotel’ at a
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far away place from the mortgaged land previously and,
later, it was shifted to the suit property covered by the
mortgage. B1 is a registration certificate issued by the
District Labour Officer in respect of his tea shop ‘Janatha
Hotel’. That certificate was issued after the execution of
Ext.A3 mortgage deed, i.e., on 26.11.1975 with the fee
paid over the renewal for the previous years as well.
Ext.B1 in no way assist the defendant in showing that he
conducted the tea shop in the suit property before Ext.A1,
leave alone his possession over such property. Ext.B2 is
an order form dated 26.6.1968 for the purchase of a fan.
The name and address of the defendant with respect to a
hotel is shown under that document hardly improves his
claim of having possession of the suit property before the
mortgage. B3 is a receipt evidencing payment of the
charges payable under the PFA Act. That receipt is dated
6.7.1973. There is nothing in that document indicating
that he was then operating the tea shop in the suit
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property. B4 is a demand notice issued by the Executive
Officer of the Local Authority dated 15.5.1975 directing
the defendant to take a licence under the Prevention of
Food Adulteration Act to operate the tea shop. That notice
dated as above is indicative that it was after Ext.A3
mortgage deed. Ext.B5 is a receipt dated 12.11.1975 as
to payment of some charges to the Local Authority in
relation to his tea shop. Particulars of the shop or where
it is located are not borne out by the receipt. Ext.B5(a) is
a similar receipt bearing the building No.KP VII/45 is
mentioned. Exts.B6 to B14 are some receipts and
communications received by the defendant in his capacity
as the manager of a hotel in some of which the name of
the hotel as ‘Janatha Hotel’ is also made mention of.
Ext.B15 is a copy of the plaint in another suit which was
also one for redemption filed by the 3rd defendant with
another against the very same defendant over a mortgage
holding admittedly enjoyed by the defendant, situate
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beside the present suit property under a registered
mortgage of the year 1976 obtained from the plaintiffs in
such suit.
14. None of the documents produced by the
defendant assist him in any way to show that Ext.A1 was
the product of fraud and his possession over the property
was not as a mortgagee under that deed. Denial of that
mortgage and a claim that he had anterior possession as a
trespasser by themselves would not advance his case of
having legal possession over the property independent of
the registered mortgage unless he is able to show that the
deed had been brought into existence by fraud, and more
so, when the materials tendered by the plaintiffs
unerringly establish, they have title over the property
which was mortgaged under Ext.A1 deed to the
defendants. Other than tendering some materials to show
that he had been in possession of the mortgaged property
earlier which, by itself, would not affect the validity of the
S.A.No.111 of 1998
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registered mortgage, the defendant has not placed
anything, nor brought in any circumstance even to raise a
suspicion that the execution of Ext.A1 registered
mortgage in his favour by the 1st plaintiff was a fraudulent
registration, to defeat his interests over the suit property.
Both the courts below, without adverting to and analysing
the incidents of rights and obligations flowing from a deed
bearing a certificate of registration with the legal
presumptions arising thereunder, and overlooking that the
plaintiffs have established their antecedent title over the
mortgaged property, which is not shown to have been
impaired in any manner, directed its enquiry on irrelevant
and inconsequential questions to determine whether the
plaintiffs are legally entitled to redeem the mortgage
covered by Ext.A1 deed. In fact, in the given facts of the
case, there was no reason for the plaintiffs to seek any
amendment of the suit to have recovery of possession on
the strength of their title where the burden had shifted
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upon the defendant to rebut the presumption available
under Ext.A3 mortgage deed in favour of the plaintiffs,
which is further proved by the materials tendered showing
their antecedent title. As there was total paucity of
evidence to sustain the challenge of the defendant that
Ext.A1 deed was a fraudulent registration, the irresistible
conclusion follows that he is a mortgagee in possession of
the suit property under Ext.A1 deed mortgage deed. He
being a mortgagee under Ext.A1 deed, it follows that his
plea of adverse possession raising a claim of trespass over
the property long prior to the mortgage, that too without
disclosing, who is the owner of the property, nor even
admitting the title of the plaintiffs deserve only an out
right rejection. “Once a mortgagee ever a mortgagee”
applies with full force, in the case of the defendant, and
the contradictory and conflicting claims canvassed by him
repudiating his status as a mortgagee disputing Ext.A3
mortgage deed are devoid of any merit.
S.A.No.111 of 1998
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15. Since the defendant has not claimed the
status of a mortgagee and disputed the title of the
mortgagor, plaintiffs over the suit property, the question
of value of improvements, if any, effected by the
mortgagee defendant was not raised and so much so, not
considered by the courts below. In the given facts of the
case, since such a claim has not been raised, needless to
point out, the defendant is not entitled to such benefit,
though he has been found to be a mortgagee in
possession negativing his case disputing such status. As
nothing more is required to be done by way of final decree
proceedings in the present suit, other than the deposit of
the mortgage price to terminate the relationship of
mortgagor-mortgagee between the parties, a decree is
passed allowing redemption of the suit property on
deposit of the mortgage price fixed under Ext.A1 deed.
Plaintiffs are directed to deposit the amount before the
court below, within a period of three months from today.
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On depositing the mortgage price, the plaintiffs are
allowed to redeem the property in execution of the decree
through court.
Reversing the judgment and decree of the
courts below, the appeal is allowed, directing both sides to
suffer their respective costs.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
//true copy//
P.S. to Judge.