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Veerappudayan and anr. Vs. Muthukarappan thevan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1913)24MLJ534
AppellantVeerappudayan and anr.
RespondentMuthukarappan thevan and ors.
Cases ReferredShamu Pattar v. Abdul Khadir Bavuthan I.L.R.
Excerpt:
- - 1 to 7. he obtained a decree for redemption against that family but failed to execute it. 3. the second contention is also, in our opinion, bound to fail......parties to the suit. we cannot accept the contention that the court in deciding that suit, was bound to determine the rights of all persons who were parties to the suit to redeem the mortgage in question. it is further argued that as the period of nine years for which the mortgage deed in karuppa udayan's favor was executed had not elapsed at the time of the institution of this suit, the plaintiffs could not sustain the suit. but karuppa udayan did not convey his mortgage rights to the plaintiffs and the suit is not instituted by virtue of any title vested in the plaintiffs as karuppan udayan's representatives in interest. his mortgage was paid off and extinguished; and the basis of the plaintiff's claim is the equity of redemption vested in them. we dismiss the second appeal with.....
Judgment:

1. The plaintiffs are purchasers of the whole or part of the equity of redemption in certain properties. They executed a mortgage for a period of 9 years to one Karuppa Udayan which authorised him to redeem an alleged prior mortgage in favour of the family of defendants Nos. 1 to 7. He obtained a decree for redemption against that family but failed to execute it. The plaintiffs were also impleaded as defendants in that suit (0.S. No. 388 of 1906) as persons having an interest in the mortgaged property. The plaintiff subsequently paid off Karuppa Oodayan's mortgage. They now seek to redeem the mortgage in the defendants' favour. The original mortgage deed has not been produced by the defendants, but. the plaintiffs have put in Ex 1 a registration copy of it. The defendants denied the mortgage set up by the plaintiffs and contended that they were themselves the owners of the property. An issue was therefore framed in these terms' whether the plaint mentioned mortgage is true.' Both the lower Courts have held it proved. Two contentions have been argued in second appeal. First that the mortgage is invalid in law because it was not attested by two witnesses but only by one witness and also because it is in any event not proved that two witnesses witnessed the execution of the mortgage deed. Secondly, that the suit is barred by the rule of res judicata in consequence of the previous suit of Karuppa Odayan (O.S. No. 388 of 1906). With regard to the first contention the first point is whether the writer of the document Veerabudra Pillai can be regarded as having attested it. Mr. Srinivasa Aiyangar the learned Vakil for the appallant contends Veerabudra did not sign the document as an attesting witness, but only as its writer. It is true that the mere statement by the writer of a document that he wrote it cannot be regarded as an attestation of it by him. The question whether, when the writer has signed his name below the executants, he can be regarded as an attestor himself must depend on the facts and circumstances of each case. See Radhakishen v. Fateh Alt Ram I.L.R. (1898) A 532 where the writer was taken to be an attestor and Banu v. Lakshman Bow I.L.R. (1908) B 44 where he was not so regarded as the statement by the writer that he wrote the document was a part of the document itself and was made above the signature of the executants. It is not necessary that the writer should describe himself as a witness, Bryan v. White (1850) 2 Rob. 315 or that there should be a testimonium clause; Burdett v. Spilsbury and Skinner v. Spilsbury (1843) 10 CL & Fin. 340. It must no doubt appear that he intended to attest the execution but where he subscribes his name at the time of execution, it would not be improper to presume such intention. We are at some disadvantage in deciding the question in this case, as we have not the benefit of seeing the original. But this disadvantage must be put down to the defendants' conduct in not producing it. What appears from Exhibit L. is that after the executant's signature two persons signed it, Kuppudayan and Veerabadra. Before Kuppu-dayan's name we have the expression or ' I know ' used no doubt to denote the fact of attestation by the person to whom the expression refers. We cannot say from Exhibit L. that the expression was intended to refer only to Kuppudayan and not to the writer Veerabudran also. The fact thai Veerabudran has signed his name is as already observed not without importance in deciding the question whether it was not intended to make him an attestor. It is hardly necessary to observe that the description of him as the writer of the document cannot show that he was not also an attestor. We are of opinion that we must hold on the materials avail, able to us that he signed the document as an attestor.

2. It is next urged that it is not proved that Veerabudra was present at the execution of the mortgage, and reliance has been placed on the decision of the Privy Council in Shamu Pattar v. Abdul Khadir Bavuthan I.L.R. (1912) M. 607, in support of the contention that a person cannot be regarded as an attestor of a document unless he witnessed its execution. But on examining the pleadings and the judgment of the 1 District Munsif we must hold that the defendants did not raise this contention in the Munsif's Court; nor did they do so in their memorandum of appeal to the Lower Appellate Court. If they had done so, the plaintiffs might have proved that the writer was present at the execution of the mortgage especially as it is extremely likely that he was present. If the contention had been raised, the onus would no doubt have been on the plaintiffs to prove that he was present. If the contention had been raised, the onus would no doubt have been on the plaintiffs to prove that Veerabadra witnessed the execution of the document. But the defendants confined themselves to the denial of execution altogether and to the contention that Veerabadhra-though present, could not be regarded as an attestor. We must therefore decline to entertain this contention at this stage.

3. The second contention is also, in our opinion, bound to fail. It is admitted that in O. Section No 388 of 1906 there was no decree in favor of the present plaintiffs entitling them to redeem the mortgage. They were not bound to claim a right to redeem before the expiration of the period of 9 years fixed in the mortgage they had given to Karuppudayan. It is indeed doubtful whether such a claim, if made, would have been entitled to succeed. The case of Raman Nam-boodri v. Achuta Pishorodi I.L.R. (1911) M. 40 is a decision in support of the plaintiff's contention that they are not barred by the judgment in O. Section No. 388 of 1906. We do not think that the fact that the 8th and 9th defendants were parties to the previous suit makes any difference. They were impleaded only because they had an interest in the mortgaged property and were therefore necessary parties to the suit. We cannot accept the contention that the court in deciding that suit, was bound to determine the rights of all persons who were parties to the suit to redeem the mortgage in question. It is further argued that as the period of nine years for which the mortgage deed in Karuppa Udayan's favor was executed had not elapsed at the time of the institution of this suit, the plaintiffs could not sustain the suit. But Karuppa Udayan did not convey his mortgage rights to the plaintiffs and the suit is not instituted by virtue of any title vested in the plaintiffs as Karuppan Udayan's representatives in interest. His mortgage was paid off and extinguished; and the basis of the plaintiff's claim is the equity of redemption vested in them. We dismiss the second appeal with costs. Time for redemption will be extended up to 31st July 1913.


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