JUDGMENT
S.M. Abdul Wahab, J.
1. These two appeals have been preferred by the same person i.e., the plaintiff in O.S. No. 526 of 1980, out of which the first second appeal arises and the third defendant in O.S. No. 53 of 1983, out of which the latter second appeal arises.
2. The appellant filed O.S. No. 526 of 1980 for redemption and for future mesne profits against one Arumuga Pularvar and three others, while Arumuga Pulavar, the first defendant in O.S. No. 526 of 1980, filed O.S. No. 53 of 1983 against the third defendant in O.S. No. 526 of 1980, for injunction restraining him from interfering with his possession and enjoyment of the suit property. As according to him, he was in possession of the suit property by virtue of the doctrine of part performance and also for specific performance.
3. The contention of the plaintiff is that the suit property originally belonged to one Sadagopachariar. He othied the suit property in favour of one Thangamani Ammal, wife of the first defendant-Arumuga Pulavar, On 22.2.1958 for Rs. 300. Thangamani Ammal died leaving the first defendant and the second defendant her husband and son as her heirs. The mortgagor Sadagopachariar died leaving third defendant as his only son. The fourth defendant is the son of the third defendant. Plaintiff purchased the property from the third and fourth defendants on 31.8.1979. As per the sale, he was directed to discharge the othi dated 22.2.1958 in favour of Thangamani Ammal. After his purchase, he sent a notice to deliver possession, as according to him, the othi deed became discharged under Act 40 of 1979. But the first defendant sent a reply setting up an agreement of sale dated 2.12.1974 in his favour. Since the plaintiff had no knowledge about the agreement, he filed O.P. No. 3 of 1984 for redemption. After the dismissal of the said petition, he filed the present suit for redemption and for future mesne profits, unleading the defendants 3 and 4 as necessary parties. Inspite of the lawyer’s notice, the defendants refused to deliver possession of the suit property, after receipt of othi amount. Hence, the plaintiff filed the above suit.
4. The first defendant, who is the plaintiff in O.S. No. 53 of 1983 filed a written statement and contended that on 2.12.1974, an agreement of sale was executed by Thiruvenkadachariar, son of sadagopachariar with the consent of his father to sell the suit property to him. A sum of Rs. 250 was paid to the third defendant as advance. The defendant agreed to discharge the othi dated 22.2.1958 and agreed to give up the mortgage under mortgage deed 24.7.1975. In furtherance of the Sale agreement, the first defendant discharged the othi deed on 15.8.1975. The defendant is continuing in possession, in pursuance of the sale agreement. The defendant spent Rs. 451 and improved the suit property. The defendant was ready and willing to perform the contract of sale. The third defendant obtained the power of attorney from the father to execute the sale deed, but he did not execute the sale deed in favour of the first defendant. Since the othi was already redeemed by the first defendant, there is no question of redemption.
5. The defendants 3 and 4 adopted the written statement of the first defendant. The first defendant filed another additional written statement contending that he is entitled to continue and defend his possession under Section 53-A of the Transfer of Property Act, since he continued to be in possession in part performance of the agreement of sale.
6. The plaintiff in O.S. No. 53 of 1983 has filed the said suit for specific performance of the agreement mentioned above, as the plaintiff in the said suit has set out the allegations mentioned above in his plaint in the said suit. The third defendant in O.S. No. 53 of 1983 is the plaintiff in O.S. No. 526 of 1980. He has filed the written statement reiterating the allegations in the plaint in O.S. No. 526 of 1980. In addition to that, he has also stated that he had already obtained a decree for redemption in the earlier suit on 23.12.1981. Since the suit O.S. No. 526 of 1980 was already disposed of, the third defendant has also raised the plea that the suit O.S. No. 53 of 1983 was barred by res judicata. In addition to that he has contended that he is a bona fide purchaser for value without notice of the sale agreement, from the plaintiff.
7. The first defendant though filed a written statement, both the first and second defendant remained ex parte. But the first defendant in his written statement put the plaintiff to prove the othi dated 22.2.1958 as well as the mortgage deed dated 24.7.1963. He has also denied the terms of the agreement plaintiff’s possession was also denied and the first defendant prayed for dismissal of the suit.
8. The second suit O.S. No. 53 of 1983 has been filed by Arumuga Pulavar, after the decree was passed in O.S. No. 526 of 1980, However, against the judgment and decree of the Principal District Munsif of Srivilliputhur in O.S. No. 526 of 1980, A.S. No. 8 of 1982 was pending on the file of the Sub Court, Srivilliputhur when the suit O.S. No. 53 of 1983 was filed. It appears that the appeal A.S. No. 8 of 1982 and the suit O.S. No. 53 of 1983 were disposed of by the same court, namely, the Sub Court, Srivilliputhur, on 30.7.1983. It appears that the suit O.S. No. 53 of 1983 was transferred to the Sub Court, Srivilliputhur from the file of the Principal District Munsif Court, Srivilliputhur by an order of the District Judge, However, the Sub Judge, Srivilliputhur has passed different orders in A.S. No. 8 of 1982 and O.S. No. 53 of 1983.
9. The learned Principal District Munsif, Srivilliputhur, on whose file O.S. No. 526 of 1980 was filed, after consideration of the evidence and circumstances of the case, passed a decree for redemption in favour of the plaintiff on 23.12.1981. He has held that the plaintiff in O.S. No. 526 of 1980 was a bona fide purchaser for value without notice of the sale agreement. He has also held that the first defendant in the said suit was in possession not in part performance of the agreement of sale but as the legal heir of the othidar i.e., his wife, who died on 6.5.1977.
10. As stated above, the appeal A.S. No. 8 of 1982 was taken up by the Subordinate Judge, Srivilliputhur and the said learned Judge allowed the appeal A.S. No. 8 of 1982. He has also held in O.S. No. 53 of 1983 that the plaintiff in the said suit was in possession in part performance of the agreement of sale. Hence he is entitled for injunction against the defendant in the said suit. But however, he rejected the relief for specific performance of the sale, as the relief was barred by time.
11. Aggrieved by the decision of the Subordinate Judge, Srivilliputhur, the plaintiff in O.S. No. 526 of 1980 has preferred the Second Appeal No. 348 of 1984, in this Court on 27.2.1984. During the pendency of the said second appeal, in this Court, he has also preferred the first appeal against the judgment and decree in O.S. No. 53 of 1983 to the District Judge, Ramanathapuram at Madurai, By a judgment and decree dated 25.11.1985, the appeal A.S. No. 137 of 1984 was rejected by the District Judge, Ramanathapuram at Madurai. Hence, the plaintiff in O.S. No. 53 of 1983, preferred the S.A. No. 1245 of 1986. Since two second appeals relate to the same property and the parties are also the same, these second appeals were taken up together for final disposal.
12. As far as the S.A. No. 348 of 1984 is concerned, it is the first one, if that is disposed of, then the other appeal S.A. No. 1245 of 1986 will also get disposed of. The judgment in the earlier one will cover the said second appeal also.
13. The learned senior counsel Mr. R. Alagar, appearing for the appellant in both the cases contended that there was no discharge of the othi in favour of Thangamani Ammal, the wife of Arumuga Pulavar. He also contended that the first defendant in O.S. No. 526 of 1980 is only an agreement holder and as such he was not entitled to redeem the othi. However, he reiterated that factually mortgage deed was not redeemed. He also contended that no possession was handed over to the first defendant pursuant to the agreement of sale, on the other hand, he continued to be in possession after the death of Thangamani Ammal as her heir. According to the learned Counsel, the possession was continued to be with Thangamani Ammal till her death.
14. The learned senior counsel Mr. T.R. Mani, appearing for the respondents contended that the othi was discharged. There cannot be any dispute with reference to the agreement. Hence, the first defendant was ready and willing to perform his part of the agreement and his possession must be protected by the grant of injunction, though he was not entitled for specific performance, as has been found by the Sub Court, Srivilliputhur and District Judge, Ramanathapuram at Madurai in O.S. No. 53 of 1983 and A.S. No. 137 of 1984 respectively. According to the learned Counsel, this othi is discharged by the first defendant and has taken possession from his wife as an agreement holder in part performance of the sale agreement, the question of redemption does not arise at all.
15. Now in the second appeals, we have to consider whether the othi in favour of Thangamani Ammal dated 22.2.1958 for Rs. 300 was discharged or not? Though, the said question is a question of fact, it requires consideration by this Court in view of the trial court’s finding in O.S. No. 526 of 1980. According to the trial court, the plaintiff was entitled to redeem the mortgage deed dated 22.2.1958 and it cannot be factually stated that the othi sought to be redeemed by the plaintiff was already discharge or redeemed. 16. The learned Subordinate Judge, Srivilliputhur who disposed of the appeal A.S. No. 8 of 1982 also has stated that the first defendant is in enjoyment of the suit property after the death of his wife by cutting the trees and improving the land. In another place in paragraph 12, he has stated as follows:
The learned Subordinate Judge has also specifically stated in paragraph 9, which is as follows:
Similarly, the trial court, which disposed of O.S. No. 53 of 1983 i.e., Sub Court, Srivilliputhur, has also stated in paragraph 11 as follows:
Plaintiff in O.S. No. 53 of 1983 has been examined as P.W. 1. In the chief-examination on 22.7.1983 he has admitted as follows:
This statement is also proved from the fact that the othi does not contain any endorsement about the discharge of the othi when the agreement of sale was executed in favour of the first defendant Arumuga Pulavar. This is an admitted fact. But the courts below have ignored this vital aspect by simply stating that normally any payment to a wife would not be evidenced by a document. It is a mere question of payment i.e., different matter, but when there is a written mortgagee deed Ex. A-2, dated 22.2.1958 (O.S. No. 526 of 1980), an endorsement could have been made in the said document when the othi was discharged on 15.8.1975, after the agreement of sale was executed i.e., Ex. A. 3 (O.S. No. 53 of 1983). When an agreement was executed in writing there would not have been any difficulty for any one to make endorsement of payment in the othi deed, which was admittedly a subject matter of the dealing on the date when the agreement was executed. Further, Armuga Pulavar, who was examined as P.W. 1 has stated in his evidence that he paid the othi amount and his wife has got it redeemed, but he says that no endorsement was made. But he has not stated why an endorsement was not made. One more important fact to be noted is that his evidence in chief-examination, in which he has stated as follows:
The above statement indicate that refers only to the completion of sale and not to the explanation of the agreement. So, the agreement completes the sale by discharging the othi and mortgage. Later he add as follows:
Later he has admitted that his wife was in possession till her death.
Ex. B-3 (O.S. No. 526 of 1980) is the agreement for sale. In that also there is no indication that any amount was paid to Thangamani Ammal on the date of the agreement. There is also no indication that the amount of Rs. 300 was paid to Thangamani Ammal on that date and that othi was discharged The statement only refers to that Rs. 250 was received as advance on 2.12.1974 and there was a sum of Rs. 300 paid to the father of the executor as per the othi in favour of Thangamani Ammal dated 22.2.1958. In substance, Ex. B-3 shows that a sum of Rs. 750 was the balance only due to the vendor. So from the evidence, we are unable to find or arrive at a conclusion that the othi amount of Rs. 300 was paid to Thangamani Ammal on 22.2.1958, when the agreement of sale was executed. It therefore lends support to the admission that Thangamani Animal continued to be in possession as the othidar till her death. If that is so, unless, there is an evidence to show that subsequently the othi was discharged by the first defendant, we have to find that the othi amount due to Thangamani Ammal before her death on 6.5.1977 was not paid to her and othi was not discharged.
17. The learned senior counsel for the respondents Mr. T.R. Mani, vehemently contended that the othi was already discharged According to the learned Counsel, D.W. 1 in O.S. No. 526 of 1980 has stated that his wife died in 1977 and the othi in favour of his wife was settled as per the agreement of sale. When there is a categorical statement by the respondent there is no cross-examination with reference to the said categorical statement. Therefore, in the absence of any cross-examination in that regard it must be taken to have been admitted that the othi was discharged. This interested witness’s evidence cannot be taken as conclusive proof of a fact when the circumstances indicate that there was no discharge of the othi. In O.S. No. 53 of 1983, the very same documents are produced. Ex. B-3 is the othi deed and there is no endorsement of discharge on the same. Ex. A-3 is the agreement of sale. As our have seen there is no specific reference about the discharge of the mortgage or payment of the mortgage amount to Thangamani Ammal When the agreement was executed on 2.12.1974. These two documents Exs. A-1 and A-3 or Exs. B-1 and B-3 in O.S. No. 53 of 1983 were there. When considering Exs. B-1 and B-3 we have found that an endorsement could have been made in Ex. B-1 if there was really payment of othi amount to Thangamani Ammal.
18. Another important fact is that Thangamani Ammal has left behind her son also apart from the first defendant. If the mortgage was not discharged before the death of Thangamani Animal, the son is also entitled to a share in the mortgage amount. The trial court in O.S. No. 53 of 1983 is also in vague on the factum of discharge of the mortgage. In paragraph 11, it is stated that after the death of Thangamani Ammal as her othi right devolved upon the first defendant, he stood in the position of the mortgagee. When there is a son, the mortgage interest will be shared by the son as well as the father. Mere agreement to adjust or adjustment by the first defendant alone with reference to the othi amount in the absence of any consent from the son, is not enough to arrive at the conclusion that othi was fully discharged. The same court, to get rid of this, goes to the extent of assuming that the first defendant was in the position of kartha of the joint family consisting of himself and his son. This is too much on the part of the trial court to assume such things which are not warranted at all from the evidence. Further, there is no question of any joint family when the debt is due to a woman and when the debt is inherited by the husband and the son. The same court has also found that it was admitted that a sum of Rs. 400 was paid towards the balance of mortgage amount of Rs. 750 and what remain was Rs. 350 to be paid for the same. But on the other hand, in the plaint itself in O.S. No. 53 of 1983, there is a categorical statement in paragraph 7 that Rs. 300 stood paid on 22.2.1958 and another sum of Rs. 250 was paid as advance and Rs. 200 was received towards mortgage on 24.7.1963, in all Rs. 750 to be paid. There is no reference at all any where in the plaint that another sum of Rs. 400 was paid, In the evidence, the plaintiff has simply stated that another sum of Rs. 400 was paid on various dates. This statement itself is contrary to his pleadings and yet the trial court in O.S. No. 53 of 1983 has come to the conclusion that Rs. 400 was paid. Even if we consider the evidence in O.S. No. 53 of 1983 without any reference to the evidence in the other case, namely O.S. No. 526 if 1980. We have to only come to the conclusion that sufficient evidence is not available to find that the mortgage was discharged either before or after the death of Thangamani Ammal on 6.5.1977. The learned Counsel for the respondents Mr. T.R. Mani, contended that a concurrent finding of fact with reference to the discharge of the mortgage has to be accepted. I am not in a position to do so. That apart there is no issue framed in the later suit as to whether the mortgage in favour of Thangamani Ammal was discharged or not. The appellate court also in A.S. No. 137 of 1984 says that merely because there is no document evidencing the discharge, it does not mean that the othi remain undischarged. According to the lower appellate court, normally, any payment to wife could not be evidenced by a document. Hence, according to the learned Judge that there is nothing improper that the othi was discharged. He even goes to the extent of saying that the evidence showed that othi was discharged by the plaintiff. But excepting the interested oral testimony of the Arumuga Pulavar there is no other evidence at all. Further, we have already found that on the date when the agreement was executed in writing nothing prevented the parties from making on endorsement in the othi deed itself. The payment is not a simple payment by a husband to wife, but the payment is with reference to a third party and the payment is due on a written document. The document itself is available. Normally, an endorsement would be made whether it is paid by the husband to wife or wife to husband. It is nobody’s case that the document was not available for making the endorsement. Therefore, the assumption that normally the payment by the husband to the wife will not be evidenced in writing is incorrect.
19. Simply because the agreement holder, the first defendant, has agreed to have the othi discharged by adjustment it cannot be contended that the othi is not subsisting and it cannot be redeemed. In Ellappa v. Sivasubramanian Maniagaram A.I.R. 1937 Mad. 293, a learned single Judge of this Court has taken the view that the mortgage was not discharged when in pursuance of an agreement to sell, the mortgage is given possession. At page 294 the learned judge has held as follows:
If the title in the portion intended to be sold in discharge of the mortgage debt had not passed, it is impossible to hold that the mortgage had been extinguished either.
The learned Judge referred to the earlier view of this Court that the transfer of possession in pursuance of an agreement to sell suffice to convey title in the absence of a registered sale deed and holds that view was overruled by the decision of the Privy Council.
20. In Narandas Karsondas v. S.A. Kamtam and Anr. , the Apex Court has held as follows:
The right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the Act of parties. The combined effect of Section 54 of the Transfer of Property Act and Section 17 of the Indian Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption. In India it is only on execution of the conveyance and registration of transfer of the mortgage interest by registered instrument that the mortgage’s right of redemption will be extinguished.
From the above discussion, it is clear that the othi in favour of Thangamani Ammal dated 22.2.1958 stand undischarged and therefore, the plaintiff, who has purchased the mortgaged properties is entitled to redeem the same.
21. On a consideration of the evidence both in O.S. No. 526 of 1980 and O.S. No. 53 of 1983, I am not in a position to hold that the othi amount due under the othi deed dated 22.2.1958 in favour of Thangamani Ammal has been discharged. The courts below in O.S. No. 526 of 1980 have found that though the agreement dated 2.12.1974 was true it was barred by limitation, since the suit was not filed before three years from the date on which the sale to be executed. As per agreement, the date was 5.2.1975. If we calculate time for filling of the suit, the time is upto 4.2.1978. Therefore, the suit ought to have been filed on or before 4.2.1978, but the suit was filed in November, 1983, that one after the other suit was decreed and during the pendency of an appeal against it. The learned Counsel for the respondents did not advance any argument on this concurrent finding, Now, therefore, the only question is whether the plaintiffin O.S. No. 526 of 1980, who was the purchaser of. the suit property is entitled to redeem the othi in favour of Thangamani Ammal. It was conceded by both the counsels at the beginning of the bearing itself that once it is found that the othi remained undischarged and subsisted, then the plaintiff will be entitled to the relief. In the circumstances, I am of the view that both the second appeals have to be allowed. The result will be the S.A. No. 348 of 1984 stands allowed and the plaintiff is entitled to redeem the othi and possession also. The trial court has found that the amount has already been deposited. The first defendant in O.S. No. 526 of 1980, now his son, is entitled to receive the sum. The suit O.S. No. 526 of 1980 is decreed and the judgment and decree of the trial court is confirmed. The suit O.S. No. 53 of 1983 is dismissed and the judgment and decree of the trial court is set aside. The S.A. No. 1245 of 1986 is allowed. However, there will be no order as to costs in both the second appeals.