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Bogam Papamma and anr. Vs. Kamatnam Lakshmamma - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 374 of 1960
Judge
Reported inAIR1964AP297
ActsTransfer of Property Act, 1882 - Sections 8; Code of Civil Procedure (CPC) , 1908 - Order 34, Rule 1; Evidence Act, 1872 - Sections 68 and 115
AppellantBogam Papamma and anr.
RespondentKamatnam Lakshmamma
Appellant AdvocateN. Ramamohana Rao, Adv.
Respondent AdvocateR.V. Subbarao, Adv.
DispositionAppeal dismissed
Excerpt:
.....of decree debt - section 8 of transfer of property act, 1882 - decree debt passed on mortgage bond transferred - section 8 provides transfer of property passes along with it all interests incidental - proper reading of registered deed of a transfer of decree debt makes it clear that intention of transferor was to transfer all rights existing under mortgage - held, transfer was of entire rights arising under mortgage and not only of mortgage decree. (ii) civil - final order - order 34 rule 1 of code of civil procedure, 1908 - decree debt on mortgage bond was preliminary decree - relation of mortgagor and mortgagee remains unaltered till passing of final order - transferee could file a fresh suit on mortgage bond for obtaining final decree. (iii) examination of attestors - sections..........the suit was barred by time, that the preliminary decree; in o. s. no. 215 of 1949 superseded the suit mortgage bond and hence no second suit can be filed on that bond, and that the dismissal of 1. as. 661 of 1953 and 662 of 1953 operated as 'res judicata' against the plaintiff. an alternative plea was also taken that if the suit mortgage was true, it has been discharged and they were not liable to pay any debt. the 3rd defendant while admitting the transfer in favour of the plaintiff stated that he was not a necessary party to the suit.3. the learned district munsif found that the mortgage-bond dated 2-4-1941 was true, valid and supported by consideration. it is also found that the plaintiff was a transferee of the suit mortgage and the preliminary decree and was entitled to file the.....
Judgment:

Manohar Pershad, J.

1. This second appeal on behalf of defendants 1 and 2 arises out of O. S. No. 108 of 1956, on the file of the District Munsif Court, Kurnool, which was instituted by the 1st defendant herein for the recovery of a sum of Rs. 968-10-3 representing the principal and interest due under a mortgage deed dated 2-4-1941.

2. The case of the 1st respondent was that one Bogam Alampur Subbamma borrowed Rs. 500/- from the 3rd defendant Bogam Gudur Giremma and mortgaged her properties by a registered mortgage deed dated 2-4-1941. The mortgage was redeemable within one year. The 3rd defendant on the basis of the mortgage filed O. S. No. 215 of 1349 for the recovery of the mortgage debt and obtained a preliminary decree. Subsequently, she transferred the mortgage decree in favour of the plaintiff under Ex. A-5 dated 3-11-1951. After the said transfer the plaintiff filed I. A. No. 661 of 1953 for continuing the proceedings and also I. A. No. 662 of 1953 for passing of a final decree. Both these I.As. were dismissed. According to the plaintiff as no final decree was passed thereafter and the mortgaged properties were not brought to sale and the preliminary decree having become un-executable, he (plaintiff) was entitled to file the suit on the foot of the mortgage'. The appellants in their written statement pleaded ignorance to the transfer made to the plaintiff by the 3rd defendant. They inter alia denied that they had acknowledged in the previous written statement their liability to discharge the mortgage debt. Legal objections were also taken that the suit was barred by time, that the preliminary decree; In O. S. No. 215 of 1949 superseded the suit mortgage bond and hence no second suit can be filed on that bond, and that the dismissal of 1. As. 661 of 1953 and 662 of 1953 operated as 'res judicata' against the plaintiff. An alternative plea was also taken that if the suit mortgage was true, it has been discharged and they were not liable to pay any debt. The 3rd defendant while admitting the transfer in favour of the plaintiff stated that he was not a necessary party to the suit.

3. The learned District Munsif found that the mortgage-bond dated 2-4-1941 was true, valid and supported by consideration. It is also found that the plaintiff was a transferee of the suit mortgage and the preliminary decree and was entitled to file the suit on the basis of the mortgage. On the issue as to whether the suit was barred in view of the order in I. As. 661 and 662 of 1953, and whether final decree proceedings in O. S. No. 215 of 1949 were a part of the suit. It was not found a bar. In the result, the trial Court passed a preliminary decree in favour of the plaintiff for Rs. 841-10-3 with interest. Against the decree and judgment of the learned District Munsif, defendants I and 2 went in appeal to the Court of the additional Subordinate Judge, Kurnool. The appellate Court agreed with the findings of the trial Court and dismissed the appeal. Hence this second appeal on behalf of defendants 1 and 2.

4. In this appeal, Sri Rarnamohan Rao, the learned counsel for the appellant has advanced two arguments. His first contention is that the transfer-deed (Ex. A-5) transferred only the mortgage-decree and not the debt, and, therefore, the present suit for recovery of mortgage amount on the basis of the mortgage-bond was not maintainable. In this connection, the learned counsel places reliance on a decision of the Allahabad High Court in Ganpat Rai v. Sarupi, ILR 1 All 446. The second contention advanced is even assuming that the present suit is maintainable, the mortgage-bond was not admissible in evidence), as none of the attestors has been examined, as required under Section 68 of the Indian Evidence Act.

5. In order to appreciate the first contention of the learned counsel, 1 have to reler to the deed of transfer and certain provisions of the Transfer of Property Act

6. The deed of transfer is in Telugu. Its English version given by the learned counsel for the appellant and accepted by the other side is in the following terms:

'Transfer Deed of mortgage decree, executed and delivered on 3rd day of November, 1951 in favour of Kama than) Chowdary's son Lakshmanna Gam, Thota Balja by caste, living by cultivation .and residing in Atmakur village, Nandikotkuru taluk, Kurnool District, by me Guduril Thimmakka's daughter Giramma, Bhogam caste, living by property and residing in Kurnool Town, Kurnool taluk is as follows:

There was the debt due under the registered simple mortgage deed for a sum of Rs. 500 (in words rupees five hundred) executed and delivered on 2-4-1941 in my favour by Alapuru Bhogam Subbamma, carrying interest at the rate of Rs. 0-10-0 per cent per mensem while so,I had for recovering the; said debt, filed a suit O. S. No.215 of 1949 on the file of the Court of the DistrictWlunsif, Kurnool, by impieading as the defendants Pap-amma and her minor daughter Tharamma who are theheirs of the aforesaid Subbarnma since deceased and Ihad obtained a decree therein on 11-1-1950. For mynecessity this day, that is, for meeting my family expenses, I have received in cash a sum of Rs. 900-0-0in words rupees nine hundred rupees. You and your heirs,snail for the said amount, recover the amount due underthe decree in O. S. No. 215 of 1949, on the file of theDistrict Munsif's Court, Kurnool, that is entire amountmade up of court costs, decree amount, and interest fromthe property which is in the possession of the defendants and heirs of Subbamma, namely Paparnma and herminor daughter Taramma by guardian Papamma. Hereafter, I and my hairs have no right whatever in the saidDecree. Till this day, I have not received any paymenttowards the said decrea debt. I have no objection whatever in the matter of yeur taking out execution proceedings in the foot of this decree, through Court for recovering the said amount. In case you cannot recover thedecree amount from the defendants, I shall not be responsible therefor. To this effect is the deed of mortgagedecree transfer executed and delivered with my consent.' . The following words in the document:

' ..... recover the amount due under the decree in O. S. No. 215 of 1949, on the file of the District Munsif's Court, Kurnool, that is, entire amount made up of court costs, decree amount and interest from the property which is mentioned in the mortgage decree schedule and which is in possession of the defendants and heirs of Subbamma, ramely, Papamma and her minor daughter Taramma by guardian Papamma.' are clear to show that the 3rd defendant not only transferred the mortgage decree but all the rights arising under the mortgage. It will be appropriate at this stage to refer to Section 8 of the Transfer of Property Act, which refers to the operation of transfer. It reads: Section 8:

'Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;and, where the property is machinery attached to the earth, the movable parts thereof;and, where the property is a house the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for pemianent use therewith;and where the property is a debt or other actionable claim the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.'

7. It follows therefore that unless there is a different intention, express or implied, the transfer of property passes forthwith to the transferee all the interest that the transferor has in the property and in the legal incidents of that interest. The scope of Section 8 of the Transfer of Property Act came up for consideration before the Patna High Court in the case of Bhagirath Prasad v. Jamuna Devi, : AIR1950Pat211 . That was also a ease where the decree debt was assigned, and a question arose whether the assignee had the right to the security also. Shearer and Reuben, JJ., held that where decree debt is transferred by a registered instrument, the securities therefor are also transferred to the transferee relying on Section 8 of the Transfer of Property Act. In the instant case, the transfer-deed clearly gives a right to the transferee to recover the decree amount and interest from the mortgaged property. Thus having regard to the clear recitals in the deed and the provisions of Section 8 of the Transfer of Property Act, the transfer in this case is of the entire rights arising under the mortgage and not only the mortgage decree.

8. The next question for consideration is whether on the basis of the mortgage bond, the suit of the present plaintiff is maintainable. The contention of the learned counsel for the appellant is that when the document is merged in the decree, the present suit for the recovery of amount on the basis of mortgage-bond is not maintainable. I do not agree with this contention. It is not denied by the appellant that till the final decree is passed the relationship of mortgagor and mortgagee subsists, and so long as that relationship subsists, it is open to the mortgagee to file a suit on the basis of the mortgage and obtain a decree. Admittedly, in the instant case, no final decree has been passed. When no final decree has been passed and when the relationship of mortgagor and mortgagee subsists, the plaintiff, who has stepped in the shoes of the original mortgagee, is entitled to file the present suit for the recovery of the amount. There is no substance in the contention of the learned counsel for the appellant that the mortgage-bond is not admissible in evidence as none of the attestors has been examined as required under Section 68 of the Evidence Act, when in the earlier suit (O. S. No. 215 of 1949) the mortgage-bond was admitted and the plea based on Section 68 of the Evidence Act was not taken. The original mortgagor or his legal representatives now cannot raise that plea.

9. There is, therefore, no merits in this appeal. It is dismissed with costs throughout. No leave.


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