{"id":39010,"date":"2011-02-03T00:00:00","date_gmt":"2011-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-madhavi-amma-vs-k-karunakaran-nair-on-3-february-2011"},"modified":"2017-11-24T11:13:16","modified_gmt":"2017-11-24T05:43:16","slug":"b-madhavi-amma-vs-k-karunakaran-nair-on-3-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-madhavi-amma-vs-k-karunakaran-nair-on-3-february-2011","title":{"rendered":"B.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
B.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 111 of 1998()\n\n\n\n1. B.MADHAVI AMMA\n                      ...  Petitioner\n\n                        Vs\n\n1. K.KARUNAKARAN NAIR\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.P.SREEKUMAR\n\n                For Respondent  :SRI.P.KESAVAN NAIR\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :03\/02\/2011\n\n O R D E R\n                S.S.SATHEESACHANDRAN, J.\n                ---------------------------------------\n                    S.A.No.111 of 1998\n                ---------------------------------------\n         Dated this the 3rd day of February, 2011\n\n                           JUDGMENT\n<\/pre>\n
           Plaintiffs     in      a     suit      for   redemption,<\/p>\n
O.S.No.122\/84 on the file of the Additional Munsiff’s Court,<\/p>\n
Nedumangad are the appellants. Both the courts below<\/p>\n
have negatived their claim for redemption of the suit<\/p>\n
property, finding merit in the contentions taken by the<\/p>\n
respondent\/defendant denying the mortgage, and of<\/p>\n
claiming anterior possessory right over the suit property,<\/p>\n
more than a decade before the alleged mortgage, by way<\/p>\n
of trespass, with a further plea of prescribing title over the<\/p>\n
same by adverse possession. Before the lower appellate<\/p>\n
court, the plaintiff had moved an application for amending<\/p>\n
the plaint to seek an alternative relief for recovery of<\/p>\n
possession on the strength of their title, but that was also<\/p>\n
turned down as belated while dismissing their appeal, and<\/p>\n
confirming the dismissal of the suit by the trial court.<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 2 ::\n<\/p>\n<\/p>\n
             2. Short facts necessary for consideration of<\/p>\n
the substantial questions of law raised for disposal of the<\/p>\n
appeal can be summed up thus:\n<\/p>\n
             Suit property having an extent of 8 cents was<\/p>\n
obtained by the 1st plaintiff under Ext.A6 partition deed.<\/p>\n
Second plaintiff is her daughter and 3rd plaintiff, her son in<\/p>\n
law. Pursuant to Ext.A6 partition deed, the 1st plaintiff<\/p>\n
executed Ext.A3 mortgage deed over the suit property, for<\/p>\n
a sum of ` 5,000\/-, in favour of the defendant and put him<\/p>\n
in possession of the property. A term of 6 years was fixed<\/p>\n
under the deed after which right to redeem was to<\/p>\n
commence. Subsequently, she executed A2 settlement<\/p>\n
deed in favour of her daughter, 2nd plaintiff, authorising<\/p>\n
her to redeem the property, and the 2nd plaintiff in turn<\/p>\n
executed Ext.A3 sale deed authorising her husband 3rd<\/p>\n
plaintiff, to redeem the property. When the period fixed<\/p>\n
was over, alleging that the defendant has committed<\/p>\n
damage to the tune of     ` 2,000\/- and the improvements<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 3 ::\n<\/p>\n
\neffected by him for digging a well, that alone, was ` 100\/-,<\/p>\n
the plaintiffs, all of them together, laid the suit for<\/p>\n
redemption, seeking adjustment of the sum due as<\/p>\n
damages in the mortgage price payable to the defendant.<\/p>\n
            3. The defendant resisted the suit claim<\/p>\n
disputing the mortgage (Ext.A1) and contended that the<\/p>\n
property belongs to him.         He claimed of obtaining<\/p>\n
possession over the property by trespass in 1965, and of<\/p>\n
conducting a tea shop in the building put up by him.<\/p>\n
Ext.A3 mortgage is a fraudulent document created by the<\/p>\n
plaintiffs to claim right over the property, was his further<\/p>\n
case. He also contended that the 1st plaintiff has not<\/p>\n
obtained right over the property under Ext.A6 partition<\/p>\n
deed. Impeaching Ext.A3 mortgage deed as not binding<\/p>\n
on him and disowning his liability to surrender the<\/p>\n
property as a mortgagee, he further contended that<\/p>\n
Ext.A1 is the product of fraud and impersonation. In the<\/p>\n
alternative, it was contended that if at all the plaintiffs<\/p>\n
S.A.No.111 of 1998<\/p>\n
                             :: 4 ::\n<\/p>\n
\nhave any right over the suit property, their rights have<\/p>\n
been lost by adverse possession and limitation by his<\/p>\n
continuous hostile possession over the property from 1965<\/p>\n
onwards. Claim for a sum of ` 20,000\/- towards value of<\/p>\n
improvements was also canvassed, if for any reason, the<\/p>\n
property is found to be redeemable.\n<\/p>\n
             4. The trial court, on the pleadings of the<\/p>\n
parties, raised the following issues:<\/p>\n
        (i)    Whether the plaintiffs are entitled to<\/p>\n
               redeem the mortgage, and if so, the claim<\/p>\n
               of damages raised, or any part thereof, is<\/p>\n
               sustainable?\n<\/p><\/blockquote>\n
        (ii)   Whether Ext.A3 mortgage deed is binding<\/p>\n
               on the defendant?\n<\/p><\/blockquote>\n
        (iii)  Is the suit barred by limitation and adverse<\/p>\n
               possession?\n<\/p><\/blockquote>\n
        (iv)   Has the defendant any special right over<\/p>\n
               the property and<\/p>\n<\/blockquote>\n
        (v)    What,     if  any,    is   the    value   of<\/p>\n
               improvements?<\/p><\/blockquote>\n
             5. On the materials tendered by both sides,<\/p>\n
which consisted of Pws.1 to 5, Exts.A1 to A11 for the<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 5 ::\n<\/p>\n
\nplaintiffs, DWS.1 and Exts.B1 to B15 for the defendant and<\/p>\n
Ext.C1 report prepared by the advocate commissioner,<\/p>\n
after conducting local inspection over the suit property,<\/p>\n
the trial court came to the conclusion that the defendant<\/p>\n
had come into possession long before Ext.A3 mortgage<\/p>\n
and that there was no clinching evidence to conclude that<\/p>\n
he is a mortgagee under Ext.A1 deed. His possession was<\/p>\n
not under Ext.A1 deed, but by trespass over the property<\/p>\n
much earlier, as contended, was found more probable to<\/p>\n
the trial court, which concluded that the plaintiffs are not<\/p>\n
entitled to redeem the property as if the defendant was a<\/p>\n
mortgagee over the property. Since there was no prayer<\/p>\n
for recovery of possession on the basis of title, the trial<\/p>\n
court held that the suit has to be dismissed. The trial court<\/p>\n
also held that the materials tendered in the case<\/p>\n
supported his claim of special right over the property, as it<\/p>\n
indicated that he had constructed a building, dug a well,<\/p>\n
and effected various improvements in the property.<\/p>\n
S.A.No.111 of 1998<\/p>\n
                              :: 6 ::\n<\/p>\n
\nThough the question of title of the plaintiffs over the<\/p>\n
property was not cast as an issue in the suit, the trial court<\/p>\n
examined that also to consider the plea of adverse<\/p>\n
possession and limitation raised by the defendant and,<\/p>\n
then, upholding such challenges mooted by the defendant<\/p>\n
to resist the redemption, the suit was dismissed.<\/p>\n
             6.  The lower appellate court, in the appeal<\/p>\n
preferred by the plaintiffs against the dismissal of their<\/p>\n
suit, turned down their request for amendment of the<\/p>\n
plaint to seek recovery of possession on the strength of<\/p>\n
their title, rejecting the application moved in that regard<\/p>\n
as belated. Re-appreciating the materials tendered in the<\/p>\n
case, that court concurring with the view of the trial court,<\/p>\n
confirmed the dismissal of the suit.\n<\/p>\n
             7. Substantial questions of law raised for<\/p>\n
consideration in the appeal are thus:\n<\/p>\n
        (i)     Has the defendant pleaded and proved his<\/p>\n
                case of adverse possession and limitation?<\/p>\n
S.A.No.111 of 1998<\/p>\n
                            :: 7 ::\n<\/p>\n<\/p>\n
      (ii)   Are not the plaintiffs entitled to get recovery<\/p>\n
             of property on the strength of their title, even<\/p>\n
             if the mortgage deed in favour of the<\/p>\n
             defendant is not proved.\n<\/p>\n<\/p>\n
      (iii)  Can the production of the licence to conduct<\/p>\n
             tea shop in the schedule building           and<\/p>\n
             possession over the building from 1973 to<\/p>\n
             1984    to   prove  adverse    possession   and<\/p>\n
             limitation.\n<\/p>\n<\/p>\n
      (iv)   Are not the plaintiffs in the case entitled to<\/p>\n
             rely on the legal presumption that possession<\/p>\n
             follows title?\n<\/p>\n<\/p>\n
      (v)    Is the appellate court justified in dismissing<\/p>\n
             the petition for amending the plaint on the<\/p>\n
             basis of the documents produced in the case?<\/p>\n
      (vi)   Is the court justified in rejecting the petition<\/p>\n
             for production of fresh documents if the said<\/p>\n
             documents are vital and a just decision<\/p>\n
             demands their acceptance in evidence?<\/p>\n
           8. I heard the counsel on both sides. Both the<\/p>\n
courts below     have     mis-appreciated      the    facts  and<\/p>\n
circumstances involved, and also the materials tendered<\/p>\n
S.A.No.111 of 1998<\/p>\n
                            :: 8 ::\n<\/p>\n
\nin the case, and the claim of the appellants\/plaintiffs for<\/p>\n
redemption of the property was negatived placing<\/p>\n
unmerited value on the defence projected by the<\/p>\n
respondent\/ defendant to deny the execution of Ext.A3<\/p>\n
mortgage deed, is the submission of the learned counsel<\/p>\n
for the appellants. Even assuming there is some force in<\/p>\n
the plea of the defendant to deny Ext.A3 mortgage, where<\/p>\n
the plaintiffs have produced Ext.A6 partition deed showing<\/p>\n
the pre-existing title of the 1st plaintiff over the suit<\/p>\n
property, the lower appellate court should have allowed<\/p>\n
the application moved for amendment of the plaint, to<\/p>\n
seek recovery of possession of the property on the<\/p>\n
strength of their title, according to the counsel. Dismissal<\/p>\n
of that application, by the court below holding it as highly<\/p>\n
belated, it is submitted, is totally unjustified especially<\/p>\n
where the trial court, without raising an issue over title,<\/p>\n
rendered an adverse decision against the plaintiffs<\/p>\n
upholding the claim of adverse possession canvassed by<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 9 ::\n<\/p>\n
\nthe defendant with a further finding that the suit claim for<\/p>\n
redemption is barred by limitation.     Plea raised by the<\/p>\n
defendant denying the execution of Ext.A3 mortgage, and,<\/p>\n
at the same time, setting forth a claim of adverse<\/p>\n
possession and limitation, disputing the title of the<\/p>\n
plaintiffs over the suit property, should have been found<\/p>\n
to be unworthy of any merit, and the suit claim for<\/p>\n
redemption proved by the materials deserved only to be<\/p>\n
allowed, is the submission of the counsel.<\/p>\n
            9. Per contra, contending that no interference<\/p>\n
with the concurrent decision rendered by the two courts<\/p>\n
below that the plaintiffs are not entitled to redeem the<\/p>\n
property and that the defendant has established his right<\/p>\n
over the property, as having prescribed title by adverse<\/p>\n
possession, the learned counsel for the respondent<\/p>\n
submitted that on the materials placed, the plaintiffs have<\/p>\n
miserably failed to show that the defendant was put in<\/p>\n
possession of the property under Ext.A1 mortgage deed.<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 10 ::\n<\/p>\n
\nHis possession over the property long prior to Ext.A1<\/p>\n
mortgage deed asserting his title over the same, is<\/p>\n
demonstrated by the materials tendered in the case, is the<\/p>\n
submission of the counsel. When Ext.A1 mortgage was<\/p>\n
denied by the defendant contending that his possession is<\/p>\n
not as a mortgagee, and that such deed is the product of<\/p>\n
fraud and impersonation, it is submitted, burden was upon<\/p>\n
the plaintiff to prove that the defendant is in possession<\/p>\n
of that property under Ext.A1 mortgage deed.             The<\/p>\n
evidence of Pws.2 and 3, the document writer and an<\/p>\n
attester respectively to Ext.A3, examined by the plaintiff,<\/p>\n
according to the counsel, as rightly found by both the<\/p>\n
courts, not only does not assist the plaintiff in proving the<\/p>\n
possession of the property by the defendant as a<\/p>\n
mortgagee under the deed, but, on the contrary, support<\/p>\n
the case of the defendant that after committing trespass,<\/p>\n
at least one decade before the mortgage, he had come<\/p>\n
into possession of the property and continued to be in<\/p>\n
S.A.No.111 of 1998<\/p>\n
                         :: 11 ::\n<\/p>\n
\npossession     and     enjoyment     effecting     valuable<\/p>\n
improvements, including the construction of a building,<\/p>\n
asserting his hostile animus to the real owner. Both the<\/p>\n
courts below have rightly and correctly held that the<\/p>\n
defendant has prescribed title over the property by<\/p>\n
adverse possession and limitation, and the claim of the<\/p>\n
plaintiffs  even assuming that they have any title,<\/p>\n
according to the counsel, is barred by limitation. No<\/p>\n
interference with the concurrent findings made by the<\/p>\n
courts below, on the proved the facts and circumstances<\/p>\n
involved and the materials placed in the case, is called for,<\/p>\n
is the submission of the counsel. The dismissal of the<\/p>\n
application moved for amendment of the plaint by the<\/p>\n
lower appellate court also does not call for any<\/p>\n
interference in the given facts of the case and, more so,<\/p>\n
where the suit commenced more than three and a half<\/p>\n
decades ago is the further submission of the counsel to<\/p>\n
contend that this appeal deserves only to be dismissed.<\/p>\n
S.A.No.111 of 1998<\/p>\n
                         :: 12 ::\n<\/p>\n<\/p>\n
           10. The defendant in the suit, who is shown to<\/p>\n
be a mortgagee in possession of the suit property under a<\/p>\n
registered mortgage deed, Ext.A1, has denied his status<\/p>\n
as a mortgagee, contending that his possession over the<\/p>\n
suit property commenced much earlier as a trespasser,<\/p>\n
and he had put up constructions in the property and<\/p>\n
continued in possession denying the title of the owner,<\/p>\n
whoever he may be, and by such continuance for the<\/p>\n
statutory period he has prescribed title over the property<\/p>\n
by adverse possession. Suit being one for redemption of<\/p>\n
the mortgage covered by a registered deed Ext.A1, what<\/p>\n
is the burden cast upon the plaintiffs who claim to be the<\/p>\n
mortgagors to sustain their right to redeem it by way of a<\/p>\n
decree from the court when resistance thereof is put up by<\/p>\n
the defendant disputing the mortgage and setting up title<\/p>\n
to himself contending that he had been in possession long<\/p>\n
prior to the mortgage and the creation of the mortgage is<\/p>\n
only a fraud by the plaintiffs     to defeat his valuable<\/p>\n
S.A.No.111 of 1998<\/p>\n
                            :: 13 ::\n<\/p>\n
\ninterests in the property, is the pivotal question emerging<\/p>\n
for consideration in the case. Have the plaintiffs to prove<\/p>\n
their title over the suit property and then seek recovery of<\/p>\n
possession of the property, where the defendant disputed<\/p>\n
his status as a mortgagee, on the strength of their title, is<\/p>\n
yet another question that may demand an answer in the<\/p>\n
facts involved. As adverted to earlier, the plaintiffs had<\/p>\n
sought for an amendment of the plaint to claim recovery<\/p>\n
of possession on the basis of their title at least before the<\/p>\n
lower appellate court, but that request was denied holding<\/p>\n
that it was belated.        Though the suit was one for<\/p>\n
redemption and no issue was raised on the basis of the<\/p>\n
contention of the defendant as to having prescribed title<\/p>\n
by adverse possession the trial court had entered a<\/p>\n
finding that the plaintiffs had lost their title upholding the<\/p>\n
claim of adverse possession of the defendant. Such being<\/p>\n
the situation, at the outset, it has to be stated whether or<\/p>\n
not the request by the plaintiffs for amendment sought for<\/p>\n
S.A.No.111 of 1998<\/p>\n
                            :: 14 ::\n<\/p>\n
\nis warranted in the case, the lower appellate court was not<\/p>\n
at all justified in turning down the amendment application<\/p>\n
moved in appeal by the appellants\/ plaintiffs         for the<\/p>\n
reason that it was ‘belated’.\n<\/p>\n
              11. Perusing the judgments rendered by the<\/p>\n
trial court as also the lower appellate court, it is seen that<\/p>\n
the tenability of the objection canvassed by the defendant<\/p>\n
disputing a registered mortgage deed over the suit<\/p>\n
property has not been appreciated and considered with<\/p>\n
reference to the law applicable to mortgages and the<\/p>\n
rights and liabilities of the mortgagor and mortgagee as<\/p>\n
covered by the Transfer of Property Act. Leaving aside<\/p>\n
the question whether the denial of the mortgage by the<\/p>\n
mortgagee would warrant amendment and conversion of a<\/p>\n
suit for redemption into one for recovery of possession on<\/p>\n
the strength of title, how far and to what extent and under<\/p>\n
what circumstances a person in possession of a mortgage<\/p>\n
holding, who is shown to be the mortgagee under a<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 15 ::\n<\/p>\n
\nregistered instrument, can set up a title adverse to the<\/p>\n
mortgagor and if such a defence is raised in a suit for<\/p>\n
redemption, how it has to be analysed has to be<\/p>\n
examined.\n<\/p>\n
           12. Ext.A1 is the registered mortgage over the<\/p>\n
suit property which, prima facie, discloses that for a<\/p>\n
mortgage price of ` 5,000\/- obtained as a loan from the<\/p>\n
defendant, as a security thereof fixing a redemption<\/p>\n
period of 6 years, the defendant was put in possession of<\/p>\n
the property. Ext.A1 deed is imputed as a fraudulent<\/p>\n
document created by the plaintiffs to defeat his interests<\/p>\n
over the property is the case of the defendant, contending<\/p>\n
that he is in possession of the property not as a<\/p>\n
mortgagee, but as a trespasser which had commenced<\/p>\n
long prior to Ext.A3 mortgage.       Ext.A3 mortgage    is<\/p>\n
executed by the 1st plaintiff wherein her antecedent title<\/p>\n
over the property obtained under Ext.A6 partition deed is<\/p>\n
spelt out. In view of the denial of the mortgage by the<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 16 ::\n<\/p>\n
\ndefendant, Ext.A6 partition deed had also been produced<\/p>\n
by the plaintiffs. In addition, plaintiffs have also produced<\/p>\n
Ext.A4 series evidencing payment of revenue charges<\/p>\n
over the property from 1965.            Pursuant to Ext.A1,<\/p>\n
mortgage, the transfer effected in favour of the 2nd<\/p>\n
plaintiff and later from that plaintiff to the 3rd plaintiff, as<\/p>\n
alleged by the plaintiffs, is proved by producing Ext.A2<\/p>\n
settlement deed and Ext.A3 sale deed. Ext.A7 is another<\/p>\n
mortgage deed obtained from the 3rd plaintiff and another<\/p>\n
by the very same defendant in respect of an adjoining<\/p>\n
property. The plaintiffs also tendered materials showing<\/p>\n
that the defendant had moved an application before the<\/p>\n
Tahsildar (Ext.A8) to effect mutation in his name over the<\/p>\n
property and a notice thereof was issued to the patta<\/p>\n
holders, the plaintiffs seeking their objections. Ext.A9 is<\/p>\n
the copy of the notice received by the plaintiffs from the<\/p>\n
Taluk Office on Ext.A8 application moved by the<\/p>\n
defendant as aforementioned. Over and above these<\/p>\n
S.A.No.111 of 1998<\/p>\n
                         :: 17 ::\n<\/p>\n
\ndocuments, to substantiate that they have title over the<\/p>\n
property and the defendant is only a mortgagee, plaintiffs<\/p>\n
produced Ext.A10 and Ext.A11 building tax receipt and<\/p>\n
demand notice from the Local Authority in respect of the<\/p>\n
building, which is made mentioned of in Ext.A3 mortgage<\/p>\n
deed. As against the documentary materials tendered by<\/p>\n
the plaintiffs, the defendant produced D1 to D15 to<\/p>\n
sustain his case that he has been in possession over the<\/p>\n
suit property from 1965 onwards and it was by way of<\/p>\n
trespass denying the title of the real owner.       Those<\/p>\n
materials tendered by the defendant have been relied by<\/p>\n
both the courts to uphold his claim of being in possession<\/p>\n
as a trespasser of the suit property and not as a<\/p>\n
mortgagee under Ext.A3 mortgage deed.<\/p>\n
           13.   What is the value of Ext.A1 registered<\/p>\n
mortgage deed and how far a denial of such mortgage<\/p>\n
deed by the defendant       where he is shown to be a<\/p>\n
mortgagee under such instrument is the primary question<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 18 ::\n<\/p>\n
\nthat has to be considered to examine the suit claim for<\/p>\n
redemption. The very purpose of the Registration Act is to<\/p>\n
guard against the fabrication of false documents of title<\/p>\n
from time to time. The real purpose of registration is a<\/p>\n
check to provide good evidence of the genuineness of<\/p>\n
written instruments. It is intended to provide a guarantee<\/p>\n
of the genuineness of the instrument and further to give<\/p>\n
notice to persons as to the dealings with respect to a<\/p>\n
property. In a case where execution of the document is a<\/p>\n
matter in issue between the parties to that instrument,<\/p>\n
registration, by itself, is not sufficient to prove its<\/p>\n
genuineness, nor dispense with necessity of independent<\/p>\n
proof.   As if the execution of the instrument Ext.A3<\/p>\n
mortgage deed was under challenge in the case, it is seen,<\/p>\n
both the courts have proceeded to appreciate the<\/p>\n
evidence let in by the plaintiffs who had taken steps to<\/p>\n
examine Pws.2 and 3, the scribe and attester to that<\/p>\n
instrument to show the genuineness of the transaction<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 19 ::\n<\/p>\n
\ncovered by that instrument. PW.3 is none other than the<\/p>\n
elder brother of the defendant. Though he admitted his<\/p>\n
signature as attester to Ext.A3 mortgage deed, he<\/p>\n
supported the contentions of the defendant as to having<\/p>\n
possession much prior to the document and, in fact, not<\/p>\n
under the instrument. PW.2, the scribe, who prepared the<\/p>\n
original of Ext.A3 mortgage deed, in his evidence stated<\/p>\n
that the defendant was not present when the mortgage<\/p>\n
deed was prepared, and, the details were furnished at his<\/p>\n
office.  He had specifically asserted that the mortgage<\/p>\n
deed was signed by the executant, the 1st defendant and<\/p>\n
also the attesters at his office. However, both the courts<\/p>\n
below found considerable merit in the case canvassed by<\/p>\n
the defendant that the mortgage deed was executed<\/p>\n
without his knowledge, placing emphasis on the statement<\/p>\n
of PW.2 scribe that he was not present when the<\/p>\n
document was prepared and also that of the brother of the<\/p>\n
defendant, one of the attesters to the mortgage deed that<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 20 ::\n<\/p>\n
\nthe defendant continued in possession much earlier to the<\/p>\n
deed as a trespasser.     To say the least, the approach<\/p>\n
made by the courts below in examining the registered<\/p>\n
mortgage deed, the execution of which is proved by the<\/p>\n
evidence of Pws.1 to 3, on the circumstances referred to<\/p>\n
above as deposed to by Pws.2 and 3, to consider the<\/p>\n
question involved arising from the denial of the defendant<\/p>\n
disputing his possession over the property as            a<\/p>\n
mortgagee, but as a trespasser, is egregiously erroneous<\/p>\n
and in fact against the settled principles of law.      As<\/p>\n
indicated earlier, the validity of the mortgage deed over<\/p>\n
the suit property duly registered under the Registration<\/p>\n
Act, and the legal presumptions attached thereto following<\/p>\n
from   the  registration   certificate endorsed   on   the<\/p>\n
instrument, with the evidence proving its execution by the<\/p>\n
mortgagor, was not even taken note of by the courts<\/p>\n
below, both of them, while the challenge against that<\/p>\n
deed by the defendant was upheld on the innocuous<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 21 ::\n<\/p>\n
\ncircumstances presented in the evidence of Pws.2 and 3.<\/p>\n
The fact that the document was duly executed and<\/p>\n
endorsed with the certificate of registration, is prima facie<\/p>\n
evidence that the requirements of the Registration Act<\/p>\n
have been complied with, and, after such endorsement,<\/p>\n
the burden of proving any act or omission, which would<\/p>\n
invalidate the registration rests on the person who<\/p>\n
challenged the registered deed. The distinction between a<\/p>\n
fraudulent registration and a challenge against the<\/p>\n
contents of a registered document is quite different and<\/p>\n
further the legal approach in impeaching a registered<\/p>\n
instrument on such distinct ground, differ from one<\/p>\n
another. So far as the challenge against the fraudulent<\/p>\n
registration, it is a case where the challenge is that the<\/p>\n
instrument itself is void. But in the case of a challenge as<\/p>\n
to contents of a registered instrument, whatever be the<\/p>\n
reason thereof, the instrument, at the most, is voidable at<\/p>\n
the instance of the party, who sets up such a challenge.<\/p>\n
S.A.No.111 of 1998<\/p>\n
                         :: 22 ::\n<\/p>\n
\nThe party, who seeks to impeach the registration of a<\/p>\n
document, upon him is the burden of proving the facts<\/p>\n
which he allege to invalidate that instrument. So far as<\/p>\n
the execution of a mortgage under a registered<\/p>\n
instrument is concerned, the presence of the mortgagee<\/p>\n
or his acceptance of the mortgage deed is not warranted.<\/p>\n
So this was a case where registration of Ext.A3 mortgage<\/p>\n
deed as required by law and execution of such instrument<\/p>\n
by the mortgagor, the 1st plaintiff, has been proved,<\/p>\n
shifting the burden on the defendant to substantiate his<\/p>\n
challenge that such registered instrument was, in fact, a<\/p>\n
fraud practised to defeat his valuable rights over the suit<\/p>\n
property, which according to him, came to his possession<\/p>\n
by trespass at least 11 years before Ext.A3 mortgage<\/p>\n
deed. Though he is alleged to have trespassed over the<\/p>\n
suit property a decade before the execution of Ext.A3<\/p>\n
mortgage deed, he has not pleaded as to who is the owner<\/p>\n
of such property, against whom by continuous and<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 23 ::\n<\/p>\n
\nuninterrupted possession, a plea of adverse possession by<\/p>\n
title had been set up in the suit. Assuming that he was a<\/p>\n
trespasser as pleaded, still he could acknowledge the title<\/p>\n
of the real owner and obtain a mortgage with the liability<\/p>\n
to be redeemed on payment of the mortgage price. So<\/p>\n
much so, the challenge raised that he was a trespasser to<\/p>\n
the property would not improve his case especially where<\/p>\n
the statutory period to prescribe title by having<\/p>\n
continuous uninterrupted possession from the date of<\/p>\n
trespass had not ben completed as and when Ext.A3<\/p>\n
mortgage deed was executed, if it is shown to be genuine,<\/p>\n
and his possession after such mortgage was only as a<\/p>\n
mortgagee of the land.       Plaintiffs have proved the<\/p>\n
execution of Ext.A3 mortgage deed and further their<\/p>\n
antecedent title over the suit property which was<\/p>\n
mortgaged under that instrument. As against the claim of<\/p>\n
the plaintiffs proved, with respect to execution and their<\/p>\n
antecedent title over the mortgage holding, what has<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 24 ::\n<\/p>\n
\nbeen tendered by the defendant are only materials to<\/p>\n
sustain that his continuous possession as a trespasser<\/p>\n
over the property from 1965 onwards. He was a<\/p>\n
trespasser over the property before the registered<\/p>\n
mortgage was executed in his favour would not in any way<\/p>\n
assist him unless he is able to prove and establish that the<\/p>\n
execution of Ext.A3 mortgage deed was a fraud<\/p>\n
committed by the 1st plaintiff, the mortgagor, to defeat his<\/p>\n
valid rights over the property. His possession was not<\/p>\n
under the mortgage despite the execution of the<\/p>\n
registered instrument necessarily has to be established<\/p>\n
showing that the mortgage deed is fraudulent and not<\/p>\n
binding on him. On that aspect, it is seen, other than the<\/p>\n
denial of the registered mortgage deed disputing<\/p>\n
knowledge over the same, the defendant has not<\/p>\n
produced any worth mentioning evidence in the case.<\/p>\n
Even the materials tendered by him would disclose that he<\/p>\n
had been conducting a hotel by name ‘Janatha Hotel’ at a<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 25 ::\n<\/p>\n
\nfar away place from the mortgaged land previously and,<\/p>\n
later, it was shifted to the suit property covered by the<\/p>\n
mortgage. B1 is a registration certificate issued by the<\/p>\n
District Labour Officer in respect of his tea shop ‘Janatha<\/p>\n
Hotel’. That certificate was issued after the execution of<\/p>\n
Ext.A3 mortgage deed, i.e., on 26.11.1975 with the fee<\/p>\n
paid over the renewal for the previous years as well.<\/p>\n
Ext.B1 in no way assist the defendant in showing that he<\/p>\n
conducted the tea shop in the suit property before Ext.A1,<\/p>\n
leave alone his possession over such property. Ext.B2 is<\/p>\n
an order form dated 26.6.1968 for the purchase of a fan.<\/p>\n
The name and address of the defendant with respect to a<\/p>\n
hotel is shown under that document hardly improves his<\/p>\n
claim of having possession of the suit property before the<\/p>\n
mortgage.    B3 is a receipt evidencing payment of the<\/p>\n
charges payable under the PFA Act. That receipt is dated<\/p>\n
6.7.1973. There is nothing in that document indicating<\/p>\n
that he was then operating the tea shop in the suit<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 26 ::\n<\/p>\n
\nproperty. B4 is a demand notice issued by the Executive<\/p>\n
Officer of the Local Authority dated 15.5.1975 directing<\/p>\n
the defendant to take a licence under the Prevention of<\/p>\n
Food Adulteration Act to operate the tea shop. That notice<\/p>\n
dated as above is indicative that it was after Ext.A3<\/p>\n
mortgage deed. Ext.B5 is a receipt dated 12.11.1975 as<\/p>\n
to payment of some charges to the Local Authority in<\/p>\n
relation to his tea shop. Particulars of the shop or where<\/p>\n
it is located are not borne out by the receipt. Ext.B5(a) is<\/p>\n
a similar receipt bearing the building No.KP VII\/45 is<\/p>\n
mentioned.      Exts.B6 to B14 are some receipts and<\/p>\n
communications received by the defendant in his capacity<\/p>\n
as the manager of a hotel in some of which the name of<\/p>\n
the hotel as ‘Janatha Hotel’ is also made mention of.<\/p>\n
Ext.B15 is a copy of the plaint in another suit which was<\/p>\n
also one for redemption filed by the 3rd defendant with<\/p>\n
another against the very same defendant over a mortgage<\/p>\n
holding admittedly enjoyed by the defendant, situate<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 27 ::\n<\/p>\n
\nbeside the present suit property under a registered<\/p>\n
mortgage of the year 1976 obtained from the plaintiffs in<\/p>\n
such suit.\n<\/p>\n
           14. None of the documents produced by the<\/p>\n
defendant assist him in any way to show that Ext.A1 was<\/p>\n
the product of fraud and his possession over the property<\/p>\n
was not as a mortgagee under that deed. Denial of that<\/p>\n
mortgage and a claim that he had anterior possession as a<\/p>\n
trespasser by themselves would not advance his case of<\/p>\n
having legal possession over the property independent of<\/p>\n
the registered mortgage unless he is able to show that the<\/p>\n
deed had been brought into existence by fraud, and more<\/p>\n
so, when the materials tendered by the plaintiffs<\/p>\n
unerringly establish, they have title over the property<\/p>\n
which was mortgaged under Ext.A1 deed to the<\/p>\n
defendants. Other than tendering some materials to show<\/p>\n
that he had been in possession of the mortgaged property<\/p>\n
earlier which, by itself, would not affect the validity of the<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 28 ::\n<\/p>\n
\nregistered mortgage, the defendant has not placed<\/p>\n
anything, nor brought in any circumstance even to raise a<\/p>\n
suspicion   that   the execution     of  Ext.A1   registered<\/p>\n
mortgage in his favour by the 1st plaintiff was a fraudulent<\/p>\n
registration, to defeat his interests over the suit property.<\/p>\n
Both the courts below, without adverting to and analysing<\/p>\n
the incidents of rights and obligations flowing from a deed<\/p>\n
bearing a certificate of registration with the legal<\/p>\n
presumptions arising thereunder, and overlooking that the<\/p>\n
plaintiffs have established their antecedent title over the<\/p>\n
mortgaged property, which is not shown to have been<\/p>\n
impaired in any manner, directed its enquiry on irrelevant<\/p>\n
and inconsequential questions to determine whether the<\/p>\n
plaintiffs are legally entitled to redeem the mortgage<\/p>\n
covered by Ext.A1 deed. In fact, in the given facts of the<\/p>\n
case, there was no reason for the plaintiffs to seek any<\/p>\n
amendment of the suit to have recovery of possession on<\/p>\n
the strength of their title where the burden had shifted<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 29 ::\n<\/p>\n
\nupon the defendant to rebut the presumption available<\/p>\n
under Ext.A3 mortgage deed in favour of the plaintiffs,<\/p>\n
which is further proved by the materials tendered showing<\/p>\n
their antecedent title. As there was total paucity of<\/p>\n
evidence to sustain the challenge of the defendant that<\/p>\n
Ext.A1 deed was a fraudulent registration, the irresistible<\/p>\n
conclusion follows that he is a mortgagee in possession of<\/p>\n
the suit property under Ext.A1 deed mortgage deed. He<\/p>\n
being a mortgagee under Ext.A1 deed, it follows that his<\/p>\n
plea of adverse possession raising a claim of trespass over<\/p>\n
the property long prior to the mortgage, that too without<\/p>\n
disclosing, who is the owner of the property, nor even<\/p>\n
admitting the title of the plaintiffs deserve only an out<\/p>\n
right rejection. “Once a mortgagee ever a mortgagee”<\/p>\n
applies with full force, in the case of the defendant, and<\/p>\n
the contradictory and conflicting claims canvassed by him<\/p>\n
repudiating his status as a mortgagee disputing Ext.A3<\/p>\n
mortgage deed are devoid of any merit.\n<\/p>\n
S.A.No.111 of 1998<\/p>\n
                          :: 30 ::\n<\/p>\n<\/p>\n
            15. Since the defendant has not claimed the<\/p>\n
status of a mortgagee and disputed the title of the<\/p>\n
mortgagor, plaintiffs over the suit property, the question<\/p>\n
of value of improvements, if any, effected by the<\/p>\n
mortgagee defendant was not raised and so much so, not<\/p>\n
considered by the courts below. In the given facts of the<\/p>\n
case, since such a claim has not been raised, needless to<\/p>\n
point out, the defendant is not entitled to such benefit,<\/p>\n
though he has been found to be a mortgagee in<\/p>\n
possession negativing his case disputing such status. As<\/p>\n
nothing more is required to be done by way of final decree<\/p>\n
proceedings in the present suit, other than the deposit of<\/p>\n
the mortgage price to terminate the relationship of<\/p>\n
mortgagor-mortgagee between the parties, a decree is<\/p>\n
passed allowing redemption of the suit property on<\/p>\n
deposit of the mortgage price fixed under Ext.A1 deed.<\/p>\n
Plaintiffs are directed to deposit the amount before the<\/p>\n
court below, within a period of three months from today.<\/p>\n
S.A.No.111 of 1998<\/p>\n
                           :: 31 ::\n<\/p>\n
\nOn depositing the mortgage price, the plaintiffs are<\/p>\n
allowed to redeem the property in execution of the decree<\/p>\n
through court.\n<\/p>\n
            Reversing the judgment and decree of the<\/p>\n
courts below, the appeal is allowed, directing both sides to<\/p>\n
suffer their respective costs.\n<\/p>\n<\/p>\n
                                             Sd\/-\n<\/p>\n
                                 (S.S.SATHEESACHANDRAN)
\n                                            JUDGE
\nsk\/-\n<\/p>\n
                 \/\/true copy\/\/<\/p>\n
                     P.S. to Judge.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court B.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-39010","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nB.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/b-madhavi-amma-vs-k-karunakaran-nair-on-3-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"B.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011 - 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