T.K. Sathiyanarayanan vs S. Jaganathan

M. Venugopal, J.—The Petitioner/Defendant has filed C.R.P. PD. No. 1278 of 2011 as against the Order dated 07.07.2010 in I.A. No.

68 of 2010 in O.S. No. 396 of 2003 passed by the Learned Additional Subordinate Judge, Chengalpattu.

The Petitioners/Defendants have filed C.R.P. PD. No. 1279 of 2011 as against the Order dated 07.07.2010 in I.A. No. 69 of 2010 in O.S. No.

394 of 2003 passed by the Learned Additional Subordinate Judge, Chengalpattu. The Learned Subordinate Judge, Chengalpattu, while passing

the orders in I.A. No. 68 of 2010 in O.S. No. 396 of 2003 [filed by the Revision Petitioner/Defendant under Order 13 Rule 3 of Civil Procedure

Code] on 07.07.2010, has, among other things, specifically observed that ''... The relief claimed by the Respondent/Plaintiff is not for the mortgage

suit. The Court fee paid is under as per Section 22 of The Tamil Nadu Court Fees and Suits Valuation Act, 1955. There is no relief asked for

preliminary decree for sale of mortgaged property. The unregistered mortgage deed may be treated as agreement and the suit can be filed on the

basis of the unregistered mortgage deed as a loan agreement. The decree claimed by the Plaintiff is for the personal decree against the

Petitioner/Defendant. Further, the Exhibit A.1 is the Loan Agreement and it was executed by the Petitioners/Defendants in a stamp paper'' etc. and

resultantly, dismissed the application without costs.

Likewise, the Learned Subordinate Judge, Chengalpattu, has assigned the reasons in I.A. No. 69 of 2010 in O.S. No. 394 of 2003 (filed by the

Petitioners/Defendants under Order 13 Rule 3 of Civil Procedure Code) on 07.07.2010, inter alia to the effect that ''The Court Fee paid is under

as per Section 22 of Tamil Nadu Court Fees and Suits Valuation Act, 1955. There is no relief asked for preliminary decree for sale of mortgaged

property etc. and also mentioned that Ex. A.1 is Loan Agreement which was executed by the Petitioners/Defendants in a stamp paper'' and

consequently, dismissed the application without costs.

Challenging the rejection order passed in I.A. Nos. 68 & 69 of 2010 in O.S. Nos. 396 & 394 of 2003 (filed by the Revision

Petitioner/Revision Petitioners), the Learned Counsel for the Petitioners submits that the Learned Additional Subordinate Judge, Chengalpattu,

while passing the impugned orders in I.A. Nos. 68 & 69 of 2010 dated 07.07.2010 has not taken into account of an important fact that the two

suits have been filed based on an unregistered mortgage deeds are not maintainable in law.

The Learned Counsel for the Petitioners urges before this Court that the trial Court has committed an error in admitting Ex. A.1-Unregistered

mortgage deed dated 12.06.1998 for Rs. 2,00,000/- and Ex. A.1-Unregistered mortgage deed dated 21.02.1999 for Rs. 1,00,000/- to and in

favour of the Respondent/Plaintiff because of the reason that in law, both the unregistered documents are not to be received in evidence.

Yet another argument projected on behalf of the Petitioners/ Defendants is that the suits are barred by limitation because of the reason, the sum

of Rs. 2,00,000/- mentioned in Ex. A.1-Mortgage Deed has been advanced on 12.06.1998 in O.S. No. 396 of 2003 and the suit has been

presented in the year 2003 beyond the period of limitation. Similar plea of limitation has been taken to the effect that the suit has been filed in the

year 2003 beyond three years period of limitation in Civil Revision Petition No. 1279 of 2011 in respect of O.S. No. 394 of 2003 on the file of

the trial Court wherein Ex. A.1-Mortgage Deed is dated 21.02.1999 for Rs. 1,00,000/-.

In both the Revision Petitions, the contention of the Petitioners is that Ex. A.1-Mortgage Deed dated 12.06.1998 for Rs. 2,00,000/- and Ex.

A.1-Mortgage Deed dated 21.02.1999 for Rs. 1,00,000/- are not to be admitted in evidence, for want of registration in law.

Lastly, the Learned Counsel for the Petitioners submits that the trial Court has come to a wrong conclusion that Ex. A.1-Unregistered Mortgage

Deed dated 12.06.1998 and Ex. A.1-Unregistered Mortgage Deed dated 21.02.1999 are only Loan Agreement contrary to the averments made

in the respective Plaints in O.S. No. 396 of 2003 and O.S. No. 394 of 2003.

Per contra, the Learned Counsel for the Respondent/Plaintiff [in both the suits] contend that Ex. A.1-Unregistered Mortgage Deed dated

12.06.1998 in O.S. No. 396 of 2003 [for Rs. 2,00,000/-] and the Unregistered Mortgage Deed-Ex. A.1 dated 21.02.1999 [for Rs. 1,00,000],

in law, can be construed as ''Loan Agreements'' and it is open to the Respondent/Plaintiff to establish the loan transactions merely on the basis of

demand made in two documents. As such, in law, there is no impediment to mark the aforesaid Ex. A.1 documents in two suits for the purpose of

establishing the loan transactions in question.

According to the Learned Counsel for the Respondent/Plaintiff in I.A. No. 68 of 2010 in O.S. No. 396 of 2003 and I.A. No. 69 of 2010 in

O.S. No. 394 of 2003 to the effect that Ex. A.1 in two suits can be marked to prove the loan amounts and to that extent there is no impediment in

law.

To lend support to the contention that the unregistered mortgaged deed viz., Ex. A.1 dated 12.06.1998 and Ex. A.1-Unregistered Mortgage

Deed dated 21.02.1999 in both the suits in question can be marked as documents before the trial Court as per law, the Learned Counsel for the

Respondent/Plaintiff seeks in aid of the decision of this Court in J. Joseph V. M.T. Santiagu, 2001-1-L.W. 613 wherein it is held thus:

The order of the lower Court requires interference. Since the mortgage deed is unregistered, at the most, it could be said that plaintiff cannot

enforce, as if it is a mortgage. But it could be taken as an agreement of loan, and the loan could be proved on the basis of admission in the

document itself. As there is no change of cause of action nor in the nature of the suit, the finding of the lower Court that plaintiff is not entitled to

amend the plaint is not correct.

He also invites the attention of this Court to the decision reported in Murugan Vs. Sumathradevi and Durairaj ), wherein it is observed as

follows:

It is clear that an unregistered mortgage deed could be taken as an agreement of loan and the loan could be proved on the basis of the admission in

the document itself. Therefore, the trial Court is erred in law in rejecting the case of the petitioner /plaintiff and the trial Court is directed to permit

the revision petitioner/ plaintiff to mark the said document namely the unregistered mortgage bond dated 3.7.1997 as exhibit on the side of the

revision petitioner/plaintiff for the limited purpose of proving the loan amount.

It is not in dispute that in suits O.S. No. 396 of 2003 and O.S. No. 394 of 2003, the Respondent/Plaintiff was examined as P.W. 1 and the

Mortgage Deed-Ex. A.1 dated 12.06.1998 for Rs. 2,00,000/- and Ex. A.1-Mortgage Deed dated 21.02.1999 for Rs. 1,00,000/- were marked.

The Revision Petitioner/Defendant in I.A. No. 68 of 2010 (C.R.P. No. 1278/2011) and the Revision Petitioners/ Defendants in I.A. No. 69 of

2010 (C.R.P. No. 1279/2011) have taken a plea that the said mortgage Deeds are inadmissible in evidence and therefore, the trial Court should

have rejected the same, inasmuch as the said documents are not inconformity with the provisions of the Indian Stamp Act, 1899.

Also, the Revision Petitioner/Revision Petitioners in I.A. No. 68 of 2010 in O.S. No. 396 of 2003 and in I.A. No. 69 of 2010 in O.S. No.

394 of 2003 have averred in para 4 of the Affidavits (filed in the Interlocutory Applications) that some other counsel was appearing for them.

A perusal of the contends of the counter to I.A. No. 68 of 2010 in O.S. No. 396 of 2003 and in I.A. No. 69 of 2010 in O.S. No. 394 of

2000 filed by the Respondent/Plaintiff proceeds to the effect that the relief claimed in both the suits is not for mortgage suits and only reliefs are

claimed u/s 22 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 for recovery of money. Further, there is no reliefs are sought for in

respect of preliminary decree for sale of mortgage property.

Moreover, the unregistered mortgage deeds viz., Ex. A.1 in both the suits can be treated as Loan Agreement because of the reason that

Revision Petitioners/Defendants have executed the same in a stamp paper. In any event, the unregistered mortgage deeds in both the suits can be

treated as Loan Agreements by a Court of Law and there is no fetter in law for the Respondent/Plaintiff to file a suit on the basis of unregistered

mortgage deeds and that too for recovery of sums advanced.

It is to be pointed out that as per Section 35 of the Indian Stamp Act relating to instruments not duly stamped inadmissible in evidence, etc., a

Court of Law is saddled with a duty to decide the question of stamp duty independently even if the parties have not taken up the point in this

regard.

At this stage, this Court deems it appropriate to cite the decision in Prabhu Dayal V. Suwa Lal and another, AIR 1994 Rajasthan 149 wherein

it is laid down as follows:

The provision Order 13, Rules 1 & 3 of CPC does not debar a Court from reopening the question of admissibility of the document already

exhibited and further that the mode of proof could not be questioned.

This Court aptly points out the decision in Kissen V. Ram, 12 WR 13, wherein it is observed that ''if after admission of a document which is

subsequently found to be irrelevant or otherwise inadmissibility, it may be rejected at any time under the rule''.

Also, an erroneous omission to object an inadmissible evidence does not make it admissible, if the evidence per se is inadmissible under the

Indian Evidence Act, 1872 as per the decision in Miller V. Madho, 23 IA 106.

At this juncture, this Court points out the decision in Vasudevan Mullan V. Krishna Ramnath, ILR (1953) Trav-Co 739 wherein it is laid down

that ''the Jurisdiction of the Court to decide the question of stamp duty u/s 35 of the Stamp Act is only incidental to the reception of the document

in evidence''.

One cannot dispute the proposition of law that under the Indian Evidence Act, 1872 marking of a document is one aspect and proving the

contents of a document is a different one altogether.

It cannot be gainsaid that in a transaction of simple mortgage, the personal clause to repay is separable and divisible from its hypothecation

clauses and viewed in that perspective, the bond is clear evidence of the debt as per the decision in Sheo Dayal V. Prag Dutt, ILR 3 All. 229

(F.B.).

Besides this, in the decision Ulfatunissa V. Hussain Khan, ILR 9 Calcutta 520, an unregistered hypothecation bond stated that Rs. 2,600/- was

received in cash at the time of execution of the, that the obligor would ""pay the amount peacefully"" within a year failing which the obligee would be

entitled to sell the hypothecated property and subsequently proceed against the other property of the obligor. The suit was held to be one for

simple money decree for principal and interest. Therefore, the said bond although unregistered can be employed in evidence to enforce the

personal obligation.

Similarly, in the decision Gomaji Vs. Subbarayappa and Another, wherein a simple mortgage was created by an unregistered bond and the

agreement was to repay the sum on demand, failing which the mortgagee was entitled to bring the mortgage property to sale, it was held that the

mortgagee was entitled to sue on the personal covenant and obtain a Personal Decree.

There can be no doubt that a Document, which may amount to a mortgage deed, even if unregistered may be utilised as a bond for making a

personal liability claim on the executant. But, the only rider is that the claim purported to be enforced must arise out of the ''personal undertaking to

pay''. To put it differently, if the claim for recovery of amount can be deduced from the deed, as a separate one from the condition of mortgage, or

if there is a personal undertaking to pay the amount of the loan, a claim of such agreement or in such circumstances for the amount of the loan can

be entertained as per the decision in Kishan Lal Vs. Sheesh Dan and Others, .

In the decision Vani V. Bani, ILR 20 Bombay 553, it is held that ''an unregistered bond for Rs. 100 or upwards, may be admissible in

evidence to prove simple debt or a personal obligation though it is inadmissible to prove any right to immovable property''. On the same lines, the

decision in Maung Po Din V. Mg. Tha Saing, AIR 1930 Rang. 142 runs.

A purported mortgagee, as per the unregistered deed is relevant for proof of loan. The said unregistered document is admissible in evidence as

per the decision in P.V.M. Kunthu Moidu V. T.M. Madhava Menon, ILR 32 Mad 410. However, if it is not to be divided in its tenor i.e. The loan

and mortgage cannot be delinked/ separated, the bond cannot be produced as evidence and proof of the debt as per the decision in Kristo V.

Bonomali, ILR 5 Calcutta 611.

An anomalous mortgage, where it is an admixture of simple usufructuary mortgage, the personal liability to pay debt can be delineated from the

property obligation. Even though the deed/bond is unregistered, in a suit brought for simple money debt and not for enforcement of lien or charge

or for the possession of the property, it can be received in evidence to support a claim for return of the money acknowledged to be due therein as

per the decision in Amarji, son of Nagaji Anjana V. Joravar Singh, AIR 1953 M.B. 9 at p. 12.

From the above, it is latently and patently clear that in law, an unregistered mortgage deed, although invalid as a mortgage may be used to

establish a loan/debt, as opined by this Court.

In this connection, this Court makes a useful reference to the averment of plaint at paragraph 10 in O.S. No. 394 of 2003 made by the

Respondent/Plaintiff wherein it is prayed hereunder:

a) Directing the defendants to pay a sum of Rs. 1,56,900/- to the plaintiff within the time that may be granted to the defendants and if they fail to

discharge the decree within the time to order sale of the hypotheca and appropriate the sale proceeds towards the decree amount as provided the

sale proceeds towards the decree amount as provided under Order 22(1) of Civil Procedure Code.

But, in para 9 of the Plaint, the Petitioner has valued the suit at Rs. 1,56,900/- for the purpose of Court Fee and jurisdiction and paid a sum of Rs.

11,775/- 50P. towards Court Fee u/s 22(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. In short, the Respondent/Plaintiff has

sought a relief of passing a preliminary decree in his favour and as against the Revision Petitioners/Defendants. [If the Defendants failed to

discharge the decree within the time to order sale of the hypotheca and appropriate the sale proceeds towards Decree amount].

Significantly, the Respondent/Plaintiff has sought the relief in para 10(a) of the Plaint directing the Defendants to pay a sum of Rs. 1,56,900/-

etc. by citing order 22(1) of Civil Procedure Code. A perusal of the schedule of property mentioned in Plaint in O.S. No. 394 of 2003 shows that

the schedule of property has been scored out in the ink on the side of the Respondent/Plaintiff. In para 6 of the Plaint averment in O.S. No. 394 of

2003, it is stated by the Respondent/ Plaintiff that the Mortgage Deed dated 21.02.1999 may be treated as Agreement. Likewise, in para 5 of the

Plaint averment in O.S. No. 396 of 2003 on the file of the trial Court, the Respondent/ Plaintiff has stated that the Mortgage Deed dated

12.06.1998 may be treated as Agreement.

The Respondent/Plaintiff, in suit O.S. No. 396 of 2003 (concerned with C.R.P. No. 1278 of 2011), in para 9 of the Plaint, has sought a relief

from the trial Court for passing of a usual preliminary decree in his favour by directing the Defendant (Revision Petitioner) to pay a sum of Rs.

4,72,900/- to the Respondent/Plaintiff with interest at 18% per annum from the date of Plaint till date of realisation.

A perusal of the original Plaint shows that the prayer for mortgage decree originally typed has been scored out and the initials have been affixed

thereto. Even the schedule of property typed and mentioned in the Plaint in O.S. No. 396 of 2003 has been scored out on the side of the

Respondent/Plaintiff. As such, the Respondent/Plaintiff has sought only a simply money decree in O.S. No. 396 of 2003 as against the Revision

Petitioner/Defendant in C.R.P. No. 1278 of 2011.

On a careful consideration of respective contentions and on an overall assessment of the facts and circumstances of the present case in an

attendant fashion, this Court is of the considered view that even though Ex. A.1-Unregistered Mortgage Deeds dated 12.06.1998 and 21.02.1999

are not to be received in evidence for the purpose of cementing a claim for passing of a mortgage preliminary decree, yet, the said documents can

be received in evidence to prove the debt/loan transactions inasmuch as the recitals of Ex. A.1-Mortgage Deeds unerringly point out that the two

mortgage deeds in issue (in both the suits) can very well be delinked and can be projected in evidence in proof of the debts in issue. Therefore, the

views of the trial Court in I.A. Nos. 68 & 69 of 2010 in O.S. Nos. 396 & 394 of 2003 that Ex. A.1-Unregistered Mortgage Deeds dated

12.06.1998 and 21.02.1999 can be marked as Exhibits for the limited extent of establishing the loan transactions cannot be found fault with.

Consequently, both the Civil Revision Petitions fail.

In the result, the Civil Revision Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.

In view of the submission of the Learned Counsel for the Respondent/Plaintiff that the Respondent/Plaintiff has only sought for the money

decree in O.S. No. 394 of 2003 on the file of the trial Court, this Court, on going through the original Plaint averments in O.S. No. 394 of 2003,

especially keeping in mind the contents of para 10, opines that the Respondent/Plaintiff has to necessarily take out an application seeking

permission of the trial Court to amend the Plaint as per Order 6 Rule 17 of CPC in regard to the relief of simple money decree (instead of the

original prayer made for passing of a preliminary decree in respect of the mortgage property etc.).

It is needless for this Court to make a significant mention that if the Plaint prayer in O.S. No. 394 of 2003 at paragraph 10(a) remains

unaltered or unamended, then, it amounts to the Respondent/Plaintiff seeking a relief of passing of a Preliminary Decree as per Order 34 of CPC in

respect of a suit pertaining to mortgage of immovable property [notwithstanding the fact that on the side of Respondent/Plaintiff, the schedule of

property has been scored out in ink in original Plaint in O.S. No. 394/2003]. Therefore, to secure the ends of Justice, this Court directs the

Respondent/Plaintiff to amend the Plaint in O.S. No. 394 of 2003 on the file of the trial Court in order to seek a simple money decree giving up the

relief of passing of a preliminary decree on mortgage, by filing necessary Interlocutory Application as per Order 6 Rule 17 of CPC [if he so desires

and so advised] and the trial Court shall permit the Respondent /Plaintiff in this regard and to pass appropriate orders on merits, of course after

providing due opportunities to the Revision Petitioners/ Defendants. After amendment of Plaint in O.S. No. 394 of 2003, if the Revision

Petitioners/Defendants are desirous of filing any subsequent pleading to their original Written Statement, then, the trial Court is also directed to

provide an opportunity to them [only if situation warrants]. Taking note of the fact that both the suits are in part-heard stage on the file of the trial

Court and the suits are of the year 2003 [more than 10 years old], this Court directs the Learned Additional Subordinate Judge, Chengalpattu to

dispose of O.S. Nos. 396 and 394 of 2003 within a period of four months [including the completion of formalities like passing orders in the

Interlocutory Application under Order 6 Rule 17 of CPC to be filed by the Respondent /Plaintiff in O.S. No. 394 of 2003] from the date of

receipt of copy of this Order.