Marimuthu vs Virudachalam and 11 others

K.P. Sivasubramaniam, J.—This appeal is directed against the Judgment and decree of the learned Subordinate Judge, Thanjavur in A.S.

No. 124 of 1993 confirming that of the learned District Munsif, Thanjavur in O.S. No. 461 of 1990. The first defendant in the suit is the appellant

in the above Second Appeal. The plaintiff filed the above suit, for the relief of a preliminary decree for redemption directing the defendants to put

the plaintiff in possession of the property-hypotheca within a time to be stipulated by the court and in default, to pass a final decree and to direct

the property being delivered and also for future profits to be paid at the rate of Rs. 400/- per month from the date of the plaint till actual delivery is

given to the plaintiff.

According to the plaintiff, the suit properties in T.S. No. 1264 originally belonged to one Sivasankaran Pillai, brother of the plaintiff herein. He

had othied the same in favour of the first defendant on 19.8.1977 for a valuable consideration of Rs. 7,000/-. The usufructuary mortgagee was

duly put in possession of the properties. The defendants 2 to 5 were the tenants under the first defendant. Sivasankaran Pillai died on 22.7.78 and

while he was in a sound and disposing state of mind, he had executed his last Will dated 3.7.1978 in favour of the plaintiff bequeathing the

hypotheca in addition to the amounts due to him from banks. The plaintiff would further submit that he had collected the amounts due as

contemplated in the Will and the Will had also come into effect immediately after the death of the testator. The plaintiff further submits that he has

also changed the Municipal registry in his name in respect of the suit property. The first defendant, according to the plaintiff, wanted the plaintiff to

sell the property to him. As the plaintiff was not agreeable for the same, the first defendant got enraged and he had instigated the plaintiffs close

relatives to issue a notice to the plaintiff and others claiming interest in the hypotheca. The said notice was suitably replied by the plaintiff and first

defendant being disappointed in not getting the property, was not prepared to receive the amount due under the Othi. The plaintiff tendered the

amount to him but the first defendant had refused to receive the same. The plaintiff has deposited the amount into court and the first defendant was

liable to pay profits from the date of deposit of amount due to the first defendant and also to surrender possession of the property.

In the written statement filed by the first defendant, it was contended that he has constructed a thatched house out of his own fund in the vacant

site. He has spent Rs. 5,250/- for the construction and further he had spent a sum of Rs. 3,750/- towards major repairs and he is entitled to

recover the said amounts from the plaintiff. The defendant further contended that the plaintiff has to prove his title to the suit property since the rival

claimants were taking steps against him. In fact, the first defendant had received a notice dated 7.5.1984 through his counsel. The contention that

the first defendant had induced the close relatives of the plaintiff was denied. The allegation that the defendants 2 to 5 are the tenants under the first

defendant was false.

In the written statement filed by the 6th defendant, it is contended that he is the tenant of the building paying Rs. 25/- per month as rent to the

first defendant. The building in his occupation was constructed by the first defendant with the knowledge and consent of the plaintiff.

On a consideration of the said pleadings, oral and documentary evidence, both the courts concurrently held that the plaintiff was entitled to

redeem the suit property and the objections taken by the first defendant were without any basis. With the result, the suit for redemption was

decreed as prayed for. Hence, the present appeal.

The Learned Counsel for the appellant has strenuously contended that the plaintiff ought to have established his title to the property in as much

as he claims to have become the owner of the property by virtue of Ex. A.1, alleged to have been executed by the original mortgagor, and the Will

ought to have been proved by examining the attestors of the Will. With reference to proving the signature of the executor in the Will, the Will has

been marked in the suit as Ex. A.1 through the plaintiff. It is also to be pointed out that the Will in the present case, is a genuine document and both

the courts have accepted the factum of execution of the same, and the said finding is a concurrent finding of fact.

6a. Even otherwise, it is pointed out by the Learned Counsel for the respondent that the plaintiff even in the absence of Will would be one of the

legal heirs of the testator. According to him, being the brother, the plaintiff is definitely a legal heir of Sivasankaran Pillai. The Learned Counsel for

the appellant does not dispute the fact that there are no other legal heirs. If so, it cannot be disputed that the plaintiff is undoubtedly the legal heir of

the mortgagor and he is entitled to redeem the mortgaged property. It is not necessary that all legal heirs who claim right over the property should

be impleaded as parties to the suit for redemption. If there was any dispute as between the mortgagors or the legal heirs it is upto the concerned

mortgagor or legal heir either to dispute the exclusive right of the plaintiff or the right of the plaintiff to sue without probating the Will.

The Learned Counsel for the respondent"" contends that there is no necessity to prove the Will since the property does not fall within the

jurisdiction of the original side of the High Court. This submission is also strengthened by Section 57 of the Indian Succession Act which is

applicable only to the properties situated within the Jurisdiction of the original side of the High Court and admittedly, the suit properties are not

situated within the jurisdiction. Therefore, the question of requirement of probate the Will does not arise.

On the question of proving the Will, and the failure to examine the attestors, the Learned Counsel relies on the judgment of Mohammed

Mohideen Vs. Muthukumara Thevar and Another, in support of her contention that if the attestors were not available, the Will can be proved only

by letting in evidence to establish that the signature of the person executing the document is in the handwriting of that person. In the present case, it

is contended that both the attestors are available. In the present case, it is contended that both the attestors are available. I am inclined to hold that

it is not for the mortgagee to raise such objections and the mortgagee cannot be heard to object to one of the legal heirs to sue for redemption.

Section 59 (a) of the Transfer of Property Act also holds that reference to mortgagors and mortgagees shall be deemed to include persons

deriving title from them.

The objection taken in the context of the right of the plaintiff to the suit property has been very vaguely taken in the written statement. Apart

from saying that the plaintiff has no locus standi to file a suit as he has no title over the suit property, the validity of the Will is disputed. The fact that

the plaintiff is entitled to the property as a mortgagor is disputed only due to the mere circumstances that some other person had issued a notice

claiming some right over the property. That circumstance alone is not sufficient to disprove the title of the plaintiff. In fact, those parties had not

chosen to implead themselves in the suit, seeking any relief in the suit, which would show that their objections are untenable. The Learned Counsel

for the respondents pleaded that the property originally belonged to one Sivasankaran, Pillai and therefore, by virtue of Section 15(2) of Hindu

Succession of Act 1956, any property inherited by a female Hindu from her father or mother, in the absence of any son or daughter of the

deceased, shall dissolve upon the heirs of the father and, therefore, even Sivasankaran Pillai cannot be the lawful owner of the property. This

objection is taken for the first time only before this Court and there is no plea to the said effect and consequently, there was no issue also before

the courts below. Therefore, this Court cannot entertain the said objection and dismiss the suit in the context of Section 15(2) of Hindu Succession.

I do not find any merits in the Second Appeal and hence, the same is dismissed. No costs.

[This Appeal having been posted this day for being mentioned in pursuance of the order of this Court dated 03.08.1999 and made herein and in

the presence of the above said Advocates, the court delivered the following Judgment]

This Second Appeal is listed after the Learned Counsel has requested this Court to list the appeal for being mentioned.

It is pointed out that in para 9 the following observation has been made:

In the present case, it is contended that both the attestors are available.

On verification of the facts, the Learned Counsel states that no attestors are available and therefore correction has to be duly carried out in the

judgment. Learned Counsel for the respondent also has not disputed the facts.

Therefore the sentence quoted above shall stand corrected as follows:-

In the present case, it is contended that both the attestors are not available.

In the cause title, instead of giving the number of the appeal as Second Appeal No. 129 of 1996, it has been wrongly mentioned as Civil

Miscellaneous appeal No. 129 of 1996.

The cause title will stand corrected as Second Appeal No. 129 of 1996.