Subramanian and 2 others vs Karuppayee Ammal and 15 others

Defendants are the appellants. The plaintiffs filed the suit for redemption of the mortgage dated 3.8.1950. The plaintiffs'' case is as follows:-

The suit properties belong to the plaintiffs. They have executed an Othi in favour of the first defendant in respect of the suit properties for Rs. 300

on 3.8.1950 for a period of five years. Possession was also handed over to the first defendant. The period prescribed for the Othi has expired. In

spite of a request and notice the defendants have failed to hand over the suit properties and hence the suit.

The defendants contended as follows:-

The defendants do not admit that the plaintiffs have title and possession in respect of the suit properties either or the date of the suit of prior to that.

It is not admitted that the plaintiffs executed the Othi in favour of the defendants. The suit properties are ancestral properties of the first defendant.

They have been granted patta. Defendants 2 and 3 have acquired prescriptive title by way of adverse possession. The plaintiffs should prove due

execution and attestation of the Othi deed. The correlation given by the plaintiffs for the suit properties by way of amendment of the plaint is not

correct. The boundaries given for the suit properties are wrong.

On these pleadings the District Munsif, Manamadurai, framed five issues and conducted trial. Exs.A.1 to A.5 were marked and P.Ws. 1 to 3

were examined on the side of the plaintiffs. Exs.B.1 to B.17 were marked and D.W.1 was examined on the side of the defendants. Learned

District Munsif, Manamadurai, decreed the suit with costs. Aggrieved by the judgment and decree of the trial Court the defendants preferred an

appeal to the Subordinate Judge, Sivaganga. Learned Subordinate Judge dismissed the appeal confirming the judgment and decree of the trial

Court. Hence the defendants have now preferred this appeal. At the time of admission of the second appeal the substantial question of law which

was framed for consideration runs as follows:-

Whether Ex.A.1 had been properly attested as required u/s 3 of the Transfer of Property Act?

The following further point was framed for consideration:-

Whether it is necessary for the plaintiffs to positively establish their title in spite of rule of estoppel?

The Points:- The mortgage is alleged to have been executed in the Year 1950. Section 3 of the Transfer of Property, Act, 1882 (hereinafter

referred to as ""the Act"") refers to attestation and defines that ""attested"" in relation to an instrument, shall be deemed always to have meant attested

by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the

instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or

mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be

necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.

The essential condition of attestation is that two or more witnesses must see the executant sign or affix his marks to the instrument or must have

received from the executant a personal acknowledgement of his signature and each of them must have signed the instrument in the presence of the

executant. It is essential therefore, for the attesting witness to put his signature for the purpose of attesting the signature of the executant as it is

called animus. The attestation also need not be in particular form according to Section 3 of the Act. In this case, as already referred to, the

registration copy of the Othi has been marked as Ex.A.1. P.W.2 Veranna Thevar is the attestor of the original of Ex.A.1. He has been examined

and he has spoken to valid attestation. The evidence of this witness has been accepted by the Courts below as satisfactory compliance of proof of

valid execution and attestation. There is no circumstance brought forth by the defendants to discredit the evidence of the attesting witness P.W.2.

P.W.2 has categorically stated that the original was written at Madurai and it was brought by the plaintiffs and defendants to his house and that he

attested the same. Of course, the evidence of P.W.2 is to the effect that at the time when the document was brought to him to his house at

Rajakoor the plaintiffs and already signed the same. But P.W.2 has also stated that all the parties concerned the plaintiffs and the defendants came

to his place and requested him to attest the same. Of course, it is not specifically stated by P.W.2 that the plaintiffs acknowledged the fact of

execution of the mortgage in favour of the defendants. The very fact that the plaintiffs, accompanied by the defendants, came to the house of the

witness and made the request would only a show that and that act they have acknowledged the execution and requested the witness to attest the

same and whereupon he attested it. It is also to be pointed out that it is the plaintiffs who have now filed the suit for redemption. P.W.1 has stated

clearly that he executed the mortgage in favour of the first defendant in respect of the suit property under the original of.Ex.A.1, P.W.2 alone is

alive and he has been examined. He speaks to the fact that the document was brought to his house by the plaintiffs as well as the defendants and

they requested him to attest the same. Therefore, it would follow that there has been a request by all the parties concerned to P.W.2 to attest the

same, which therefore, shows that they have requested the witness to attest stating that the plaintiffs have executed the mortgage in favour of the

first defendant and that by acknowledging the execution the document of the Othi in favour of the first defendant, whereupon only the witness

attested the same. It is not necessary under the definition of the term attestation that the witness must actually be present when the executant signed

it. The definition itself shows that if there is an acknowledgement by the executant that is sufficient. It is only essential that the witness should have

put his signature animeus attestandie that is for the purpose of attesting that he has seen the executant sign or has received from him personal

acknowledgement. It is also to be pointed out that one of the defences is that the a document was created. To that extent there is admission that

there is a document created to endow such an Othi as alleged in the plaint. It is also to be pointed out that the witness P.W.2 was examined nearly

30 years after the execution of the document. On the date of his examination he was sufficiently advanced in age. Therefore, one cannot expect the

witness to remember the details accurately and speak to the same. As I have pointed out already the suit is by the mortgagors and the document

was executed by the mortgagors and the document was executed by the mortgagors and P.W.1 has stated that he executed the document P.W.1

also speaks to the fact that P.W.2 attested the document at Rajakoor at his residence. It is also the evidence of P.Ws.1 and 3 that two other

attestors belong to the same village and they are close relatives of the first defendant. This is not challenged. It is in this connection to be further

pointed out that the defendants have stated in the written statement that plaintiff have created document at the instance of Kanjimadai

Mookkusamy. Therefore, when the Courts below have in the circumstances, accepted the evidence of P.W.2 as satisfactory and as one complying

with the provisions of the Transfer of Property Act as well as the Evidence Act I am not persuaded to take a different view from that of the Courts

below. In fact, realising that on the question of proof of the document the defendants have not much to say. Therefore, the learned counsel for the

appellants strongly canvassed the case that the plaintiffs have failed to prove their title to the property and therefore, the suit for redemption must

fail. The counsel for the appellants strongly by contended that inasmuch as the plaintiffs have failed to prove title, the suit for redemption will not lie.

It becomes necessary to touch upon that aspect so that an effective adjudication of the case can be bad. Of course, the plaintiffs have not

produced any other document of title, namely, the title deed relating to the property. But when a mortgage is executed it can be taken that original

title deeds were handed over to the mortgagee at that time. Further the defendants would contend that it is their property. They have also not

chosen to produce any document of title relating to the suit property. Though one of the defendants would state that it was the family property we

do hot find any document forthcoming from the parties to the suit in support of it. But we get an indication from the defendants'' plea. For the

defendants have stated clearly that even other wise the defendants have prescribed title to the property by adverse possession. The question of

prescription of title to the property by adverse possession would arise only if the title to the property is admitted to be with the plaintiffs. By such a

plea title is conceded. Of course, it is an alternative plea raised by the defendants perhaps by the way. But the reason for which I have to refer the

same, is that the defendants are some what conscious of the fact that they will not be in a position to dispute the title of the plaintiffs and thus to

establish their title to the property otherwise. Learned counsel for the appellants would contend that the defendants have been granted patta to the

property by the Tahsildar. Admittedly the properties form part of erstwhile Inam. Therefore, on the abolition of Inam and conversion into ryotwari

as the defendants are in possession, they have been apparently granted patta. Therefore, mere grant of patta will not be conclusive on the question

of title. Therefore, the appellants cannot, on the strength of the patta granted to them contend, much less with any force, that they are the owners of

the suit property. Admittedly, the plaintiffs are residing elsewhere and the defendants are residing in the suit Village, where the properties are

situate. Therefore, they were in possession and they have been granted patta. It is not known whether any notice was issued to the plaintiffs and

whether any enquiry as such was held by the Settlement Tahsildar, and whether the plaintiffs participated. Further, suit being one for redemption

title is not relevant. Therefore, the grant of patta will not carry the defendants further.

There is a document of mortgage which says that the properties were mortgaged by the plaintiffs in favour of the first defendant. Plaintiffs have

not of course, produced any other document of title. It is possible that they were handed over along with mortgage to the defendants, the

mortgagees. The original of the mortgage deed can also be with the defendants only. Mere production of patta by the defendants is not conclusive

on the question of title. For their part defendants claim the property as the ancestral property. But such a case is not persisted by them. Now in this

context one has to see whether it will be open to the defendants, as the mortgagees to dispute the title of the mortgagors. Normal Rule is that in a

suit on mortgage the title has no relevance. In other words the question of title need not be gone into nor is it germane for consideration. Learned

counsel for the appellants would rely upon the decision reported in 82 LW. 81 S.N, to contend that in a suit for redemption of a mortgage the

plaintiffs have to positively establish their title to the suit properties when it is disputed by the defendants and it is not open to the Court to declare

the title of the plaintiffs to the suit properties and grant them the relief of redemption merely on the ground that the defendants have not proved their

title to the properties in support of their plea of ownership. I am afraid that the decision quoted by the learned counsel for the appellants sets out

the proposition rather too widely. It has not taken into account the ruling of this Court reported in Appu Goundar Vs. Munusami Kone and Others,

which in turn refers to the decision of this Court in Arumugha Thevar v. Chella Thevar 1955 (II) M.L.J. 14. A mortgagee who has been put in

possession by the mortgagor pursuant to a mortgage is estopped, so long as the relationship between them continues, from denying the

mortgagor''s title to the property. It is only where the mortgagor''s title is in doubt, there is any scope at all for invoking the aid of the rule of

estoppel. The Courts cannot avoid application of the rule by going into the very question and finding that the mortgagor had no title on the date of

the execution of the mortgage. Therefore, the Rule is clear that a mortgagee who has been put in possession pursuant to the mortgage, cannot deny

the relationship. For Once a mortgage it is always a mortgage. In other words the application of the Rule would arise only when the title is disputed

or doubted. The application of the Rule estoppel would arise even when there is some scope or doubt regarding title and when there is some

dispute is raised as regards the title of the mortgagor. Here, assuming defendant has succeeded in raising some doubt regarding the title then it is all

the more necessary to apply the rule. In such a case the Rule would come into play and the estoppel would operate. During the subsistence of the

mortgage it is not open to the mortgagee to dispute the title of the mortgagor. The Rule of estoppel is specific and relentless. If one were to go into

the very question of title and to give a finding then the Rule would be meaningless. What cannot be done directly cannot be allowed to be done

indirectly. There are no extenuating circumstances here. Just as a tenant cannot deny the title of the landlord so cannot a mortgagee. Generally, in a

suit on mortgagee for redemption the title to the property is irrelevant. Therefore, the Courts below have appreciated the facts properly and have

held that the plaintiffs are mortgagors and the defendants are mortgagees in respect of the properties described in the suit and therefore, the

plaintiffs are entitled for redemption of the same. The argument of the learned counsel for the appellants based upon the decision reported in 82

LW 81 (SN) in my opinion, is not sound. Apparently the decision in Appu Goundar Vs. Munusami Kone and Others, was not brought to the

notice of the Judge. Hence the said decision is not a good law. When the Rule of estoppel is there, the Courts cannot go into the very question of

title to find out as to who is the owner of the property and thus defeat the very Rule and the salient principles behind it. Such an exercise is thus

prevented. A mortgagee cannot question the title of the mortgagor. Therefore, the contention of the counsel for the appellants that the plaintiffs

have failed to prove the title is a misconceived one. On the other hand, the plaintiffs have satisfactorily established the valid execution and

attestation of the suit mortgage. Once it is established mortgagees are estopped from disputing the title of the plaintiffs and it is not incumbent upon

the plaintiffs to positively establish their title. Therefore, it follows that the plaintiffs are entitled to redemption of suit mortgage. Thus I do not find

any reason to differ from the view of the Courts below, and the appeal has to be dismissed as devoid of merits.

In the result, the Second Appeal is dismissed with costs confirming the judgment and decree of the Courts below.