Ramasharma (Sushri) vs Tajbi @ Badbi (Smt.) and Others

Abhay M. Naik, J.—This appeal has been preferred by the plaintiff against dismissal of her suit for recovery of Rs. 1,32,000/-through sale of the mortgaged property or otherwise vide impugned judgment and decree dated 08.02.2002 passed by the Court of II Additional District Judge, Ujjain in civil suit no.74A/2001.

Short facts leading to this appeal are that the defendant/respondents are legal heirs of Abdul Wajid Khan, who executed simple mortgage deed in respect of his house no.29 (old no.4/1742) on 16.11.1993 for consideration of Rs.88,000/-. Interest @ 1.50% per month was payable under the said mortgage deed. Period of redemption was fixed upto 09.11.1996. It was agreed that in case of failure in payment of mortgage money with interest, plaintiff shall have a right to recover the amount by sale of the mortgaged property. Abdul Wajid Khan made payment once only of Rs. 1,800/-towards interest. It was duly entered in the book. After the death of Abdul Wajid Khan on 15.01.1996, defendant no.2 paid Rs. 1000/-each for the month of April and May, 1996 towards interest. Thus, total sum of Rs.3,800/-was paid towards interest and nothing was paid towards the principal amount. Thus, in addition to the mortgage money, plaintiff is entitled to Rs.39,760/-towards interest which was not paid despite demand notice. Hence, the suit for recovery of Rs. 1,32,000/-with future interest @1.50% per month. Additionally, relief for realization of money through sale of mortgaged property was also prayed for.

Defendant/respondents no. 1 to 4 submitted joint written statement refuting thereby the claim of the plaintiff. It has been further stated that no payment was made to Abdul Wajid Khan on 16.11.1993. It seems from the document itself that the alleged loan was quite old and suit is therefore barred by limitation. It is further revealed that no money was received by Abdul Wajid Khan on 16.11.1993 since the document dated 16.11.1993 itself reveals that the sum of Rs.88,000/-was not paid at all to Abdul Wajid Khan. Accordingly, the suit is liable to be dismissed.

Learned trial Judge after framing the issues recorded the evidence and found that the plaintiff failed to prove that the alleged loan of Rs.88,000/-was received by Abdul Wajid Khan from the plaintiff on 16.11.1993 with interest @1.50% per month. No interest was shown to have been paid. Accordingly, the suit has been dismissed. Hence, the present appeal.

Shri M.K. Jain, learned counsel appearing for the appellant and Shri B.L. Jain, learned counsel appearing for the respondents made their respective submissions.

It has been contended on behalf of the appellant that the case of the appellant has been duly proved and the mortgage deed having been duly established, the suit ought to have been decreed in plaintiff''s favour. Contrary to this, Shri B.L. Jain, learned counsel appearing for the respondents supported the impugned judgment.

Plaintiff''s suit for recovery of Rs. 1,32,000/-is based on registered mortgage deed dated 16.11.1993 (Ex.P-1). According to the plaintiff, Abdul Wajid Khan who executed the said mortgage deed had obtained a loan of Rs.88,000/-from the plaintiff on interest @ 1.50% per month which was not repaid. Sum of Rs.43,732/-was due towards interest in addition to principal amount of Rs.88,000/-. This has been recited in the registered mortgage deed Ex.P-1 which has been found proved. The impugned judgment and decree of dismissal of plaintiff''s suit is not sustainable in law. It is also contended that no rebuttal evidence was adduced by the defendants. In view of the plaintiffs oral and documentary evidence, the case of the plaintiff having been duly established, the suit ought to have been decreed. Learned trial court has acted illegally in acting contrary.

Learned trial Judge while dismissing the suit has found that the registered mortgage deed contained in Ex.P-1 is without consideration and that it is legally proved. No money was paid at the time of execution of Ex.P-1. Thus, mortgage deed was found to be without consideration and the suit was accordingly dismissed by the learned trial Judge.

On perusal of the registered mortgage deed marked as Ex.P-1, it is observed that it contains a recital that Abdul Wajid Khan had received loan in the past from the plaintiff. It is also recited that Abdul Wajid Khan purchased the property under mortgage from his brother for which he needed loan to meet the expenses of registering the same. On account of non-payment, the earlier loan accumulated to the tune of Rs.52,400/-which has been acknowledged and accepted to be subsisting at the time of execution of Ex. P-1. Thus, the learned trial Judge has committed grave error in dismissing the suit merely on the basis that payment of money in cash was not made on the date of execution of the registered mortgage deed Ex.P-1. According to Section 58 of the Transfer of Property Act, 1882, a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

Keeping in view the aforesaid definition, it may be conveniently observed that the past liability on the mortgagor would serve the purpose of consideration, which is permissible under law. Thus, acceptance of Abdul Wajid Khan about the past liability of Rs.52,400/-on account of earlier loan is a consideration for the purpose of mortgage which has been ignored by the learned trial Judge. Case of the defendant/respondents is merely that no payment of money was made by the plaintiff to Abdul Wajid Khan at the time of execution of Ex.P-1. Consideration for the purpose of mortgage as per the definition may be even the money advanced in past. The defendants did not lead any evidence at all to refute the past liability of Rs.52,400/-. In the absence of any evidence in rebuttal, case of the plaintiff to the tune of Rs.52,400/-is found established and the plaintiff in turn is found entitled to recover the said amount from the mortgaged property described in Ex.P-1.

It may be further seen that the plaintiff had promised to pay a further sum of Rs.35,600/-to the defendant as mentioned in Ex.P-1. Out of the sum, Rs.30,000/-is stated to have been paid to Abdul Wajid Khan by bank cheque. Plaintiff in her statement stated that in addition to the liability of Rs.52,400/-, the plaintiff had given cheque to Abdul Wajid Khan for a sum of Rs.30,000/-. Rs.5,600/-is also stated to have been advanced by the plaintiff in cash. However, the plaintiff has not summoned the bank record to prove that any such cheque was given by her to the defendant-Abdul Wajid Khan and that any such cheque was encashed by the mortgagee. Similarly, there is no cogent proof to reverse the finding of the trial Court that the plaintiff had failed to prove the advancement of Rs.5,600/-to Abdul Wajid Khan. Since, no evidence in rebuttal was adduced, adverse inference to the extent of the liability of Rs.52,400/-may be drawn against the defendants. However, learned trial Judge without considering the admitted past liability of Rs.52,400/-has dismissed the suit in its entirety, which is not sustainable in law. Accordingly, it is held that the plaintiff/appellant is entitled to recover a sum of Rs.52,400/-from the defendants. In case of failure of payment by them, it may be recovered by sale/auction of the mortgaged property described in registered mortgage deed marked as Ex.P-1. Since, the defendants are not proved to have inherited any other movable or immovable property (except the mortgaged property) from Abdul Wajid Khan, it is made clear that no recovery shall be made from the personal property belonging to defendants/respondents.

In the result, appeal is allowed in part in the manner indicated below:-

a. Impugned judgment and decree contrary to the aforesaid, is hereby set aside and the suit is decreed in the aforesaid manner. Decree be modified accordingly.

b. Plaintiff/appellant is found entitled to recover sum of Rs.52,400/-from the mortgaged property described in Ex.P-1.

c. Defendant/respondents shall have right to pay to the plaintiff or deposit a sum of Rs.52,400/-within six months. In case of failure, the plaintiff/appellant shall have right to recover the money from the mortgaged property described in the mortgage deed Ex.P-1.

No order as to costs.

C.C.as per rules.