Sharfunisa Bi vs Ameena Bi Ammal

S.A. Kader, J.—The appeal is against the judgment and decree of the Court of the Subordinate Judge, Tirupattur, North Arcot District, in

O.S.No. 59 of 1978. The plaintiff who has succeeded in part is the appellant. This is a suit on a simple mortgage. The case of the plaintiff is that

the defendant borrowed from the plaintiff a sum of Rs. 14,500 on 31-5-71 and executed the suit mortgage bond in respect of the scheduled

property agreeing to repay the said sum of Rs. 14,500 with interest thereon at 12% per annum within a period of one year. The defendant has not

paid any amount towards principal or interest. The mortgage debt is not hit by the Tamil Nadu Debt Relief Act or the subsequent Moratorium

enactments. The defendant is not also an agriculturist. The plaintiff is entitled to claim interest at the contract rate and hence the suit.

The defendant admitted the execution of the suit mortgage deed, but pleaded failure of consideration to the tune of Rs. 2500. According to her,

the amount borrowed was Rs. 12,000 only and a sum of Rs. 2,500 was added on to the principal to ensure proper repayment. It is the further

case of the defendant that on 31-5-1971 itself there was an oral agreement between the plaintiff and the defendant that the plaintiff be put in

possession of the mortgage property and adjust the rent towards interest due on the mortgage deed. According to the defendant, in pursuance

thereof the plaintiff took possession of the mortgage property on 31-5-1971 itself and remained in possession till 31-5-1975. The plaintiff is not

therefore entitled to claim interest for the said period of 4 years. It is also contended by the defendant that she subsequently sent a sum of Rs.

12,000 by cheque on 16-5-1977 towards the principal of the mortgage debt, but the plaintiff refused to receive the same and hence the plaintiff is

not entitled to claim interest on the sum of Rs. 12,000 from 16-5-1977. The defendant also claimed the benefit of Act 38 of 1972 and that the suit

was barred in view of Act 16 of 1976. She also disclaim liability for costs.

On the above pleadings the following issues were framed for trial (1) Whether the suit mortgage deed is not supported by consideration to the

extent of Rs. 2,500? (2) Whether the plaintiff is not entitled to claim interest for four years from 31-5-1971 to 31-5-1975 for the reasons alleged

in the written statement? (3) Whether the plaintiff is not entitled to claim interest on Rs. 12,000 from 16-5-1977? (4) Whether the defendant is not

entitled to the benefits of Debt Relief Act? (5) Whether the suit filed during the operation of Madras Act 16 of 1976-is not maintainable? (6)

Whether the defendant is not liable for costs? (7) To what relief, if any, are the parties entitled to?

On issue No. 1 the learned Subordinate Judge found that the suit mortgage bond was supported by consideration to the full. On issue No. 2, it

was found that the plaintiff was in possession of the suit house from 31-5-1971 to 31-5-1975 and was not entitled to claim interest for the

aforesaid period. In respect of Issue No. 3, it was answered that the plaintiff was entitled to claim interest from 1-6-1975 till realisation. Issue No.

4 was answered in favour of the plaintiff and it was held that the defendant was not entitled to the benefit of Debt Relief Act. Issue No. 5 was not

pressed. On issue No. 6 the plaintiff was held entitled to claim costs. In the result there was a preliminary decree for Rs. 14,500 with interest

thereon from 1-6-1975 till the date of decree at 12% per annum and thereafter at 6% per annum till realisation with proportionate costs-.

Aggrieved by the disallowance of the interest for the period from 31-5-1971 to 31-5-1975 the plaintiff has preferred this appeal. The defendant

has not preferred any cross-appeal or cross-objection.

The points that arise for determination are as follows:

(1) Whether the agreement pleaded by the defendant that the plaintiff was put in possession of the suit property in lieu of interest is hit by S. 92 of

Evidence Act?

(2) Whether the plaintiff was in possessions of the suit property from 31-5-1971 till 31-5-1975 as alleged by the defendant?

Point No. 1:- Ex. A1 is the registered deed of mortgage executed by the defendant in favour of the plaintiff for Rs. 14,500 in respect of the suit

property belonging to the defendant. It is a simple mortgage and the amount of Rs. 14,500 advanced thereunder is repayable in a period of one

year with interest thereon at 12% per annum. The plaintiff has filed the suit for recovery of this amount of Rs. 14,500 with interest thereon at 12%

per annum from the date of mortgage. The contention of the defendant is that at the time of the execution of the suit mortgage bond it was agreed

that the plaintiff should be in possession of the suit house in lieu of interest and in pursuance thereof, the plaintiff was in possession of the suit

property from 31-5-1971 itself upto 31-5-1975 and she is not, therefore, entitled to claim interest for this period of four years. The short point for

consideration is whether this contention falls within the mischief of S. 92 of Indian Evidence Act. S. 92 of Indian Evidence Act runs as follows;-

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a

document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the

parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.

Ex. A1 is a simple mortgage under which a sum of Rs. 14,500 is advanced on the security of the secured property. It is not a mortgage with

possession. The agreement now pleaded by the defendant, that at the time of the execution of Ex. A1 deed of mortgage it was agreed that the

plaintiff must take possession of the suit property and be in occupation thereof in lieu of interest, has the effect of converting a simple mortgage into

a mortgage with possession. It tantamounts to varying the terms of Ex. A1 and comes directly within the operation of S. 92 of Evidence Act. The

point has been covered by a direct decision of Their Lordships of Judicial Committee of Privy Council in Mian Feroz Shah v. Sohbat Khan 38

L.W. 68=A.I.R. 1933. In the case before the Judicial Committee, the mortgage was one with possession and evidence was sought to be let in to

show that the mortgage was intended to be a simple Privy Council 173 mortgage. Rejecting the contention the Judicial Committee observed,

Evidence to show that the mortgage was in reality a simple mortgage according to the intention of the parties was inadmissible under S.92 of

Evidence Act, and no presumption could be drawn from the previous transactions.

I therefore hold that it is not open to the defendant to plead that there was a contemporaneous agreement under which the plaintiff is to take

possession of the suit property and be in occupation thereof in lieu of interest when Ex. A1 mortgage deed specifically refers to a simple mortgage.

This point is found against the defendant.

Point No. 2:- Assuming that it is open to the defendant to put forward such a contention, the question is whether the plaintiff was in fact in

possession of the suit property from 31-5-1971 to 31-5-1975. The burden is definitely on the defendant to establish that in pursuance of such an

oral agreement the plaintiff was in possession of the property for the aforesaid period of four years. Excepting the interested testimony of the

defendant as D.W. 1 and her son as D.W. 2, there is no oral or documentary evidence to substantiate this contention. The defendant has not

chosen to examine even a neighbour to prove that the plaintiff was in possession of the suit property during the aforesaid 4 years. The learned

Subordinate Judge has however come to the conclusion that the plaintiff has been in possession from 31-5-1971 merely on the ground that she is

now in possession of the suit property. The case of the defendant is that on 31-5-1975 the plaintiff vacated the suit house and thereafter she leased

it out to one Ravoof Sahib and at that time the plaintiff''s husband trespassed into the property and forcibly occupied it. It seems that the plaintiff''s

husband has filed a suit in O.S. No. 545 of 1975 on the file of the District Munsif, Tirupattur claiming to be a tenant of the suit house, but his

contention was rejected and it was held that he was a trespasser. This judgment and decree have been confirmed in appeal in A.S. No. 108 of

1976 on the file of the Court of the Subordinate Judge, Tirupattur. Evidently, therefore, the plaintiff''s husband has trespassed into the suit property

after 1-6-1975 and the plaintiff has been in possession along with her husband who is a trespasser pure and simple. Hence from the fact that the

plaintiff is now in possession of the suit property, it cannot be said that her possession commenced from 31-5-1971.

On the other hand there are two clinching pieces of unimpeachable evidence to show that the plaintiff has, during this period, been living

elsewhere. Ex. A2 is the voters card dated 17-11-1973 which gives the address of the plaintiff as Door No. 11, Santhamiyan Sahib Street. Ex.

A3 is the voters, list dated 28-2-1975 and the plaintiff''s name is found at Door No. 11, Santhamiyan Sahib Street. No aspersion can be cast upon

these documents which go a long way to show that the plaintiff has been living in Door No. 11, Santhamiyan Sahib Street, during the relevant

period. She has also flatly denied in her evidence as D.W. 1 that she took possession of the suit property or was in occupation thereof from 31-5-

1971 till 31-5-1975. The defendant has therefore miserably failed to establish that the plaintiff was is possession during this long period of four

years and is therefore disentitled to claim interest. This point is also found against the defendant. In the result the appeal is allowed, the judgment

and decree of the Court below are modified and there will be a decree as prayed for with costs throughout.